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ELCPartially AllowedNot stated in judgment (Meru ELC matter; subject of transfer to Isiolo Law Courts)· [2022] KEELC 2095 (KLR)

Japhet Muthee Naman v Everlyn Nguta Naitore Muthuri & 2 others [2022] KEELC 2095 (KLR)

Environment and Land Court
19 January 2022
CNC.K. Nzili
644 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court moved a land dispute to Isiolo where the property and parties are, but refused to merge it with a separate, unrelated case.

What this practically means

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Executive summary

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By a notice of motion dated 8 April 2021, the 3rd defendant sought transfer of the suit to Isiolo Law Courts for disposal and consolidation with Isiolo CMC ELC No. 5 of 2020, on the grounds that the cause of action arose in Isiolo, the parties reside there and are siblings of the late Naaman Mwarania, and that consolidation would serve the interests of justice. The plaintiff opposed, contending the matters were different and the application a waste of the court's time; the 1st and 2nd defendants also opposed, arguing the consolidation threshold was unmet, the causes of action differed, no valuation report established the magistrates' court's jurisdiction, and the application would cause delay. Parties filed written submissions, the applicant relying on Law Society of Kenya v Centre for Human Rights and Democracy and Korean United Church of Kenya v Seng Ha Sang on consolidation, and the respondents on Benson H. Mutahi and Nyati Security Guards. Justice C.K. Nzili found that the Chief Justice had designated an ELC court at Isiolo to bring justice closer to the parties; since the subject matter and parties are in Isiolo County and the matter had not commenced at Meru, no prejudice would arise from transfer, and the court allowed transfer, deferring the valuation question by transferring the matter for appropriate orders and disposal. However, on consolidation and stay, the court found the parties, subject property and advocates in the two suits were different and the 3rd defendant was not party to the lower court case, so there were no common questions of law and fact. Prayer 1 (transfer) was allowed; prayers 2 and 3 (consolidation and/or stay) were disallowed, with no order as to costs.

Key legal issues

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01

Whether transfer of the suit to Isiolo Law Courts was warranted

Holding

Transfer allowed because the subject matter lies in Isiolo County, the parties reside there, the matter had not commenced in Meru, and no prejudice would be caused

Reasoning

The court noted the Chief Justice had designated an ELC court at Isiolo to bring justice closer to the parties. With the subject matter and parties in Isiolo and the matter not yet commenced at Meru, transfer would occasion no prejudice and serve the interest of justice, as supported by John Mwangi Karanja v Alfred Ndiangui.

p. 1
02

Whether the suit should be consolidated with Isiolo CMCC Case No. 5 of 2020

Holding

Consolidation refused; the parties, subject property and advocates differ and the 3rd defendant is not a party to the lower court case

Reasoning

The court compared the two suits and found the parties not the same, the subject property different, the advocates different, and the 3rd defendant not a party to the lower court matter. Applying Benson H. Mutahi v Raphael G. Gichovi, it held the suits raise no common questions of law and fact, so consolidation failed.

p. 2
03

Whether a valuation report was necessary for transfer

Holding

As no valuation was available, the court transferred the matter to the ELC court without determining the monetary jurisdiction question

Reasoning

The applicant (3rd defendant) argued no valuation showed the Chief Magistrates Court had jurisdiction over the lower court matter. The court sidestepped this by transferring the matter to the ELC court at Isiolo for appropriate orders and disposal, avoiding a finding on valuation.

p. 2

Legal principles established

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  • Consolidation of suits requires common questions of law and fact between the suits
  • Where the subject matter and parties reside in the county where an ELC court is designated, transfer to that court serves the interest of justice and occasions no prejudice

Court orders

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  1. 1.The matter is transferred to the ELC court at Isiolo Law Courts for the appropriate orders and disposal
  2. 2.Prayer 1 of the application allowed; prayers 2 and 3 (stay and/or consolidation with Isiolo CMCC Case No. 5 of 2020) disallowed
  3. 3.No order as to costs

Authorities

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Cases cited (7)

  • Benson H. Mutahi –vs- Raphael G. Gichovi Munene Kabutu & Others
    [2014] eKLR
  • Nyati Security Guards & Services LTD. –vs- Municipal Council Of Mombasa
    (2004) eKLR
  • John Mwangi Karanja –vs- Alfred Ndiangui
    [2011] eKLR
  • Kathita Ngeen –vs- Mwaniki Kisume
    [2018] eKLR
  • Rapid Kate Services Ltd –vs- Freight Forwarders Kenya Ltd & 2 Others
    [2005] 1 KLR 292
  • Law Society of Kenya –vs- The Centre for Human Rights and Democracy
  • Korean United Church of Kenya & 3 Others –vs- Seng Ha Sang
    [2014] eKLR
Jurisdiction invoked
Environment and Land Court Act - transfer of suits; Hon. Chief Justice's designation of an ELC court at Isiolo Law Courts

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Japhet Muthee Naman v Everlyn Nguta Naitore Muthuri & 2 others [2022] KEELC 2095 (KLR)", Case Analysis (2022). Not stated in judgment (Meru ELC matter; subject of transfer to Isiolo Law Courts). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2095/eng@2022-01-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.