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ELCDismissedMachakos ELC 206 of 2016· [2022] KEELC 3752 (KLR)

Tina Holdings Limited v Housing Finance Company of Kenya (HFCK) & another (Environment & Land Case 206 of 2016) [2022] KEELC 3752 (KLR)

Environment and Land Court
9 June 2022
COChristine Ochieng
2,583 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to move land cases from Machakos to Nairobi, confirming that you cannot pick your preferred court — land cases belong where the land sits.

What this practically means

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Executive summary

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The plaintiff in Machakos ELC 206 of 2016 moved the court by Notice of Motion dated July 9, 2021 under sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules, seeking review of orders made on February 21, 2017 transferring Nairobi ELC 9 of 2017 (now Machakos ELC 115 of 2017) and Nairobi ELC 10 of 2016 (now Machakos ELC 113 of 2017) to Machakos ELC, and their transfer back to Nairobi, with an alternative prayer for a stay of proceedings. The applicant argued that Nairobi and Machakos ELCs had issued conflicting directions and that hearing the matters in Nairobi would be more cost-efficient, as the parties, advocates and one suit property (LR 14968/173 - Muthithi Gardens, Kiambu) were Nairobi-based. The 2nd defendant opposed, contending there were no conflicting directions (final directions having been issued on March 9, 2017), that the application was brought almost five years late without exhibiting the order sought to be reviewed, and that the court had jurisdiction since the suit property Athi River/Athi River Block 1/87 lies in Machakos County. The court applied section 80 and Order 45 rule 1, and the Muyodi and National Bank of Kenya v Ndungu Njau review thresholds. It found no error apparent on the face of the record, no conflicting directions, inordinate delay, and an attempt by the applicant to forum-shop. The court found it had jurisdiction and declined both the review and the stay, dismissing the application with costs on June 9, 2022.

Key legal issues

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01

Whether the February 21, 2017 transfer orders should be reviewed and the files transferred back to Nairobi ELC

Holding

Application for review declined; no error apparent on the face of the record and no conflicting court directions existed; application suffered inordinate delay

Reasoning

The court traced the review thresholds in section 80 of the Civil Procedure Act and Order 45 rule 1. It found the February 21, 2017 order was made after being informed of Justice Obaga's February 16, 2017 order, and the suit land lay in Machakos County. The applicant did not dispute the situs of the land, and the claim of conflicting directions was unfounded as final directions were issued on March 9, 2017.

p. 4
02

Whether the court has jurisdiction over the suits

Holding

The court found it has jurisdiction since one of the suit properties (Athi River/Athi River Block 1/87) lies in Machakos County

Reasoning

The applicant's claim of cost efficiency and Nairobi residence of parties was rejected. The court noted the applicant had not disputed that one suit land is situated in Machakos County, and took judicial notice that the applicant was forum-shopping rather than respecting the legal tenets conferring jurisdiction.

p. 5

Legal principles established

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  • An applicant for review under Order 45 rule 1 must show discovery of new and important matter, an error apparent on the face of the record, or other sufficient reason, without unreasonable delay
  • A party cannot select the forum that suits it; jurisdiction is conferred by legal tenets and the situs of the suit property is material

Court orders

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  1. 1.The Notice of Motion dated July 9, 2021 is dismissed
  2. 2.Costs of the application to the 2nd defendant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 80
  • Civil Procedure RulesOrder 45 rule 1(1)

Cases cited (9)

  • Omwoyo vs African Highlands & Produce Co Ltd
    (2002) 1 KLR
  • Belinda Muras & 6 Others v Amos Wainaina
    (1978) eKLR
  • Philip Chemwolo & Another v Augustine Kubede
    (1982–88) KLR 103
  • Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited
    (2014) eKLR
  • Re estate of Philip Nthenge Mukonyo (Deceased)
    (2018) eKLR
  • Anthony Gachara Ayub V Francis Mahinda Thinwa
    (2014) eKLR
  • Muyodi V Industrial and Commercial Development Corporation and Another
    EALR (2006) EA 243
  • Grace Akinyi Vs Gladys Obiri & Another
    (2016) eKLR
  • National Bank of Kenya Vs Ndungu Njau
Jurisdiction invoked
Sections 1A, 1B, 3A & 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)

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, "Tina Holdings Limited v Housing Finance Company of Kenya (HFCK) & another (Environment & Land Case 206 of 2016) [2022] KEELC 3752 (KLR)", Case Analysis (2022). Machakos ELC 206 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3752/eng@2022-06-09

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