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ELCAllowedEnvironment & Land Miscellaneous Case 220 of 1999· [2022] KEELC 14941 (KLR)
Ndurya & 2 others v Municipal Council of Malindi & another; Omondi & 12 others (Affected Party)
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#What this practically means
#Executive summary
#This ruling by N.A. Matheka, J of the Environment and Land Court at Mombasa determined an application dated 14 February 2022 by the 2nd Defendant, the Chairman Gede Primary School, seeking transfer of a land suit filed in 1999 from the ELC at Mombasa to the ELC at Malindi. The applicant, a public school in Gede within Kilifi County, argued that the suit property is located in Gede, that the nearest ELC is at Malindi, and that the plaintiffs live in the Gede area, so no prejudice would arise from the transfer. The plaintiffs opposed, contending that the ELC's jurisdiction is not confined to the county where the subject property lies, that the suit has been pending since 1999, that the application was filed late, and that the defendants' conduct estopped them from seeking a transfer. The court considered Articles 162(2)(b) and 165(5)(b) of the Constitution and Section 13 of the Environment and Land Court Act, and Sections 12 and 15 of the Civil Procedure Act, which allow suits over immovable property to be instituted where the property is situated or where defendants reside. Making a finding of fact that the property, the school, the plaintiffs and the affected parties are all within Kilifi County, the court held there was no reason to retain the case in Mombasa and ordered its transfer to the Malindi ELC for hearing and determination, with costs of the application in the cause.
Key legal issues
#01
Territorial jurisdiction and venue for land disputes
Holding
Where the suit property and the parties are located in Kilifi County, the proper forum is the ELC at Malindi, the nearest court to the suit property, and there is no reason to retain the matter in Mombasa.
Reasoning
The court applied Sections 12 and 15 of the Civil Procedure Act, which permit suits relating to immovable property to be instituted where the property is situated or where defendants reside. It made a finding of fact that the suit property is in Gede, Kilifi County, that the school and plaintiffs are in Gede, and that the affected parties work in Kilifi County, making Malindi the convenient forum.
Legal principles established
#- Sections 12 to 15 of the Civil Procedure Act give a plaintiff the option of suing where the cause of action arose, where immovable property is situated, or where the defendant resides or carries on business.
Court orders
#- 1.The case be transferred to Malindi ELC for hearing and determination
- 2.Costs of the application to be in the cause
- Jurisdiction invoked
- Article 162(2)(b) as read with Article 165(5)(b) of the Constitution and Section 13 of the Environment and Land Court Act; Sections 12 and 15 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndurya & 2 others v Municipal Council of Malindi & another; Omondi & 12 others (Affected Party)", Case Analysis (2022). Environment & Land Miscellaneous Case 220 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14941/eng@2022-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.