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ELCDismissedELC No. 427 of 2017 (formerly Kwale ELC No. 158 of 2021)· [2022] KEELC 2204 (KLR)

Rimber v Unifresh Exotic (K) Limited (Environment & Land Case 427 of 2017) [2022] KEELC 2204 (KLR)

Environment and Land Court
9 June 2022
4,559 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Defendant/Applicant, Unifresh Exotics (K) Limited, filed a Notice of Motion dated 14th February 2022 seeking transfer of the suit (ELC No. 427 of 2017, formerly Kwale ELC No. 158 of 2021) from the Environment and Land Court to the Chief Magistrate's Court at Kwale, under Sections 3A, 11, 12 and 13 of the Civil Procedure Act, contending the land (LR Kwale/Mnasini/663) lay within Kwale, that its value fell within the magistrate's pecuniary jurisdiction, and that transfer would save time. The Plaintiff, Cecilia Mumbi Rimber, opposed, arguing the application was incompetent as the suit had already been transferred to Mombasa ELC, that the defendant annexed no valuation report to justify transfer, that the claim (purchase price plus mesne profits of about Kshs 6,000,000 per year) exceeded the magistrate's pecuniary jurisdiction, and that the application was a delaying tactic. The court framed three issues: the ELC's mandate, sufficiency of grounds for transfer, and costs. Relying on Sections 12 and 15 of the Civil Procedure Act and applying David Kabungu v Zikarenga, Justice L. L. Naikuni held the suit had been properly filed in a court with jurisdiction, that the defendant bore the burden of proving value under Section 107 of the Evidence Act and failed to do so, and that the claim with mesne profits and interest would likely exceed the Chief Magistrate's pecuniary jurisdiction. The application was dismissed with costs to the plaintiff; the suit was to be fixed for hearing within 90 days. Notably, the judge recused himself because he had just decided a related case involving the same parties, and referred the file to the ELC Presiding Judge.

Key legal issues

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01

Jurisdiction of the ELC Mombasa over the suit

Holding

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

Reasoning

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.

p. 6
02

Whether sufficient grounds existed for transfer to the Chief Magistrate's Court

Holding

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

Reasoning

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.

p. 7
03

Costs of the application

Holding

Costs awarded to the plaintiff as the application was without merit

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.Notice of Motion application dated 14th February 2022 dismissed; Grounds of Opposition dated 21st February 2022 sustained
  2. 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. 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. 4.Costs of the application to be borne by the Defendant/Applicant

Authorities

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Legislation

  • Civil Procedure ActSections 3A, 11, 12, 13, 15, 18(1), 27(1)
  • Environment and Land Court DirectionsRule 14
  • Environment and Land Court ActSection 13
  • Civil Procedure Rules, 2010Order 2 Rule 6; Order 11
  • Magistrates ActSections 7 and 9
  • Evidence ActSection 107
  • Constitution of Kenya, 2010

Cases cited (2)

  • David Kabungu v Zikarenga & 4 others
    Kampala HCCS No. 36 of 1995
  • Hangzhou Agro-Chemicals Industries Limited v Panda Flowers
    [2021] eKLR
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

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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, "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.