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ELCAllowedPetition No. 9 of 2018· [2022] KEELC 2113 (KLR)

Chunky Limited & another v Patrice Ndune & 10 others [2022] KEELC 2113 (KLR)

Environment and Land Court
19 January 2022
NMN.A. Matheka
1,050 words in judgment
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The bottom line

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Kenya's Environment and Land Court transferred five land cases to Kwale because land disputes must be filed where the property is actually located.

What this practically means

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Executive summary

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This was a notice of motion dated 12th October 2021 brought by the 1st and 2nd Petitioners under Sections 12 and 15 of the Civil Procedure Act and Section 19(2) of the Environment and Land Court Act, seeking transfer of Petition No. 9 of 2018 and four related matters (ELCC Nos. 273 of 2017, 405 of 2017, 92 of 2020 and 202 of 2018) from the ELC at Mombasa to the ELC at Kwale on the ground that the court lacked territorial jurisdiction because the subject parcels MN/VI/909 & 910 lie in Kwale County. The applicants relied on survey documents, rate payments, and satellite imaging and survey maps produced by the Kwale County Surveyor, showing the parcels on the Kwale side of the Southern Bypass Highway. The respondents opposed, pointing out that the Petition originated in the High Court as Constitutional Petition No. 34 of 2017 before transfer to the ELC, and contending that the parties disagreed on whether the properties lie in Mombasa or Kwale, so determining location would decide a cardinal issue without full evidence from surveyors and registrars. The court found prima facie evidence that the subject matter is in Kwale County, noted that ELC Courts have concurrent jurisdiction so contested issues could be determined there, saw no prejudice to the respondents, and granted the application as prayed, with costs in the cause.

Key legal issues

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01

Territorial jurisdiction based on location of subject matter

Holding

There was prima facie evidence, including survey maps and satellite imaging produced by the Kwale County Surveyor, that the suit parcels MN/VI/909 & 910 lie in Kwale County; transfer was warranted.

Reasoning

The applicant relied on Section 12 of the Civil Procedure Act requiring suits over property to be filed where the property is situated, and Section 19(2) of the Environment and Land Court Act binding the ELC to Civil Procedure Act procedure. The Kwale County Surveyor produced survey maps, satellite imaging and location plans showing the parcels on the Kwale side of the Southern Bypass. The respondents disputed the location, but the court held contentious issues could be determined in Kwale since ELC Courts have concurrent jurisdiction and respondents would suffer no prejudice.

p. 2
02

Concurrent jurisdiction of ELC courts and prejudice

Holding

Because ELC Courts enjoy concurrent jurisdiction, any contentious issues on the location of the properties can be resolved by the Kwale court, and no prejudice would befall the respondents.

Reasoning

The respondents argued that determining transfer would amount to deciding a cardinal issue in the pleadings without full evidence from surveyors and registrars. The court sidestepped this by finding prima facie evidence of location in Kwale and reasoning that ELC courts having concurrent jurisdiction meant the Kwale court could hear and determine any disputed issues; hence transfer caused no prejudice and the application succeeded as prayed.

p. 2

Legal principles established

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  • Suits concerning property in Kenya must be instituted in the court within whose local limits the property is situate
  • Jurisdiction is foundational; without it a court cannot take any further step

Court orders

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  1. 1.The application dated 12th October 2021 is granted as prayed
  2. 2.The Petition and related matters (ELCC Nos. 273 of 2017, 405 of 2017, 92 of 2020, 202 of 2018) to be transferred to ELC Kwale

Authorities

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Legislation

  • Civil Procedure ActSection 12
  • Civil Procedure ActSection 15
  • Environment and Land Court ActSection 19(2)
Jurisdiction invoked
Section 12 and Section 15 of the Civil Procedure Act; Section 19(2) of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Chunky Limited & another v Patrice Ndune & 10 others [2022] KEELC 2113 (KLR)", Case Analysis (2022). Petition No. 9 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2113/eng@2022-01-19

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