Rimber v Unifresh Exotic (K) Limited (Environment & Land Case 427 of 2017) [2022] KEELC 2204 (KLR)
The bottom line
#The Environment and Land Court in Mombasa refused to transfer a Kshs 10.7 million land dispute to a magistrates' court, and the defendant must pay the legal costs.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC Mombasa over the suit
The suit was properly filed in ELC Mombasa, which had jurisdiction; the defendant's own defence admitted the cause of action arose within that court's jurisdiction
Sections 12 and 15 of the Civil Procedure Act permit filing where the land is situated or where the defendant resides or carries on business. The suit land is in Kwale within the Mombasa ELC's limits at the time of filing, and the defendant admitted in its defence that the cause of action arose within the court's jurisdiction. Since jurisdiction goes to the root of a matter, a court lacking jurisdiction cannot transfer what it has no power over.
Whether sufficient grounds existed for transfer to the Chief Magistrate's Court
No; the defendant failed to prove the value of the suit land and the claim, with mesne profits and interest, likely exceeds the magistrates' pecuniary jurisdiction
Applying David Kabungu v Zikarenga, the applicant bore the burden of making a strong case for transfer. The defendant relied on the pleaded purchase price of Kshs 10,744,500 but offered no valuation report; land appreciates, and mesne profits and interest from 2015 would likely push the claim beyond the Chief Magistrate's pecuniary jurisdiction. Transfer would serve only the defendant's convenience.
Costs of the application
Costs awarded to the plaintiff as the application was without merit
Under Section 27(1) of the Civil Procedure Act, costs follow the event. Having found the notice of motion dated 14th February 2022 to be without merit, the court held the plaintiff entitled to the costs of the application.
Legal principles established
#- The burden lies on the applicant for transfer to make out a strong case; a mere balance of convenience is not sufficient ground for transfer
- A party applying for transfer of a suit to a lower court bears the burden of proving the value of the subject property
- Costs follow the event under Section 27(1) of the Civil Procedure Act
Court orders
#- 1.Notice of Motion application dated 14th February 2022 dismissed; Grounds of Opposition dated 21st February 2022 sustained
- 2.Suit to be fixed for hearing and final determination within the next 90 days; mention for Pre-Trial Conference under Order 11 of the Civil Procedure Rules, 2010 on 26th July 2022
- 3.Judge recused himself from the matter and directed that it be placed before the ELC Presiding Judge at ELC No. 1 for further directions, given the court's recent judgment in Kaoyeni Enterprises Limited v Unifresh Exotics (K) Limited involving the same parties
- 4.Costs of the application to be borne by the Defendant/Applicant
- Jurisdiction invoked
- Sections 3A, 11, 12, 13, 15, 18(1) and 27(1) of the Civil Procedure Act, Cap 21; Rule 14 of the Environment and Land Court Directions, 2014
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rimber v Unifresh Exotic (K) Limited (Environment & Land Case 427 of 2017) [2022] KEELC 2204 (KLR)", Case Analysis (2022). ELC No. 427 of 2017 (formerly Kwale ELC No. 158 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2204/eng@2022-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.