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ELCDismissedELC No 895 of 2014 (Consolidated with ELC Misc No 47 of 2014) – Application dated October 26, 2022· [2023] KEELC 700 (KLR)

Blossom Hill Estate Agents Company Limited v National Land Commission & 7 others (Environment & Land Case 895 of 2014 & Environment and Land Miscellaneous Application 47 of 2014 (Consolidated)) [2023] KEELC 700 (KLR)

Environment and Land Court
9 February 2023
1,995 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that magistrates' courts—not the ELC—decide property rate recovery disputes at first instance, and refused to consolidate unrelated suits.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi on a notice of motion dated October 26, 2022 by the 8th defendant, Aldermen Limited, seeking transfer of the City Court suit CMCC (Nairobi City County v Jayantilal Shah & 4 others) to the ELC for consolidation with the instant suit. The applicant had purchased the suit property LR No 209/6/5 for Kshs 30 million at a public auction pursuant to a decree in the rates suit and obtained a vesting order, later settled the 6th defendant's objections by paying a further Kshs 30 million, yet the City Court judgment was subsequently set aside. The applicant intended a counterclaim of Kshs 350 million, contending this exceeded the magistrate's court's jurisdiction. The plaintiff opposed, asserting the two suits were distinct and consolidation improper; the 6th and 7th defendants argued the ELC could not withdraw a rates suit within the subordinate court's jurisdiction, noting an appeal against the setting aside had already been dismissed. The court held that section 25 of the Rating Act vests first-instance jurisdiction over rates recovery in the Magistrates' Courts, following Machakos County Government v Kapiti Plains Estate Limited, and that it was not open to the ELC to direct the court seized of the matter to down its tools. Applying the consolidation criteria in Law Society of Kenya v Centre for Human Rights & Democracy and Benson G. Mutahi, the court found the criteria unsatisfied. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Jurisdiction over suits for recovery of rates

Holding

The Magistrates' Courts, not the ELC, have first-instance jurisdiction over recovery of rates under section 25 of the Rating Act.

Reasoning

Section 25 of the Rating Act expressly confers on magistrates empowered to hold subordinate courts of the first class jurisdiction to hear and determine suits for the recovery of rates. The court relied on Machakos County Government v Kapiti Plains Estate Limited, which held that disputes relating to rates at first instance belong to the Magistrates' Courts notwithstanding their pecuniary jurisdiction.

p. 4
02

Whether consolidation with the City Court suit was warranted

Holding

Consolidation was refused because the 8th defendant did not meet the criteria: common questions of law or fact, same transaction, and absence of prejudice.

Reasoning

Applying the Supreme Court's pronouncement in Law Society of Kenya v Centre for Human Rights & Democracy and the criteria in Benson G. Mutahi v Raphael Gichovi Munene Kabutu, the court found the applicant had not demonstrated commonality of issues or absence of prejudice. The City Court suit concerned rates while this suit concerns ownership; they were at different stages of trial.

p. 4
03

Whether the intended counterclaim of Kshs 350 million ousts the magistrate's court's jurisdiction

Holding

The court declined to make that finding, holding that the court seized of the matter must determine its own jurisdiction.

Reasoning

The applicant argued that its intended counterclaim of Kshs 350 million exceeded the subordinate court's pecuniary jurisdiction. The court, citing Owners of Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd, held that jurisdiction must be raised before the court seized of the matter, which is obliged to decide it; it is not for the ELC to direct the magistrate's court to down its tools.

p. 4

Legal principles established

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  • Under section 25 of the Rating Act, magistrates of the first class have jurisdiction to hear and determine suits for the recovery of rates, notwithstanding the Magistrates' Courts Act.
  • The court seized of a matter is obliged to determine its own jurisdiction; another court cannot declare that the seized court should down its tools.
  • Consolidation requires that the same questions of law or fact arise, that the claims arise from the same transaction, and that no party be prejudiced.

Court orders

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  1. 1.The application dated October 26, 2022 is dismissed
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Rating ActSection 25
  • Magistrates' Courts ActCap 10
  • Environment and Land Court ActSections 13(1) and 162

Cases cited (10)

  • Daikyo Japan Motors ltd & 2 others v Fairuz Feisal Yasin & another
    (2020) eKLR
  • Nyati Security Guards & Services Ltd v Municipal Council of Mombasa
    [2004] eKLR
  • Law Society of Kenya v Center for Human Rights & Democracy & 12 others
    [2014] eKLR
  • Republic v Karisa Chengo & 2 others
    [2017] eKLR
  • Sabina Morra Swanya v Everly Kemunto Ontiri & another
    [2021] eKLR
  • County Council of Nakuru v Simon Ole Kaminta & 3 others
    [2007] eKLR
  • Korean United Church of Kenya & 3 others v Seng Ha Sang
    [2014] eKLR
  • Machakos County Government v Kapiti Plains Estate Limited
    [2021] eKLR
  • Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Benson G. Mutahi v Raphael Gichovi Munene Kabutu & 4 others
    [2014] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and sections 13(1) and 162 of the Environment and Land Court Act (as cited by parties); Section 25 of the Rating Act

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, "Blossom Hill Estate Agents Company Limited v National Land Commission & 7 others (Environment & Land Case 895 of 2014 & Environment and Land Miscellaneous Application 47 of 2014 (Consolidated)) [2023] KEELC 700 (KLR)", Case Analysis (2023). ELC No 895 of 2014 (Consolidated with ELC Misc No 47 of 2014) – Application dated October 26, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/700/eng@2023-02-09

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