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ELCOtherMiscellaneous Application E013 of 2023· [2023] KEELC 21851 (KLR)

Thebe v Charo & 2 others (Sued on their own behalf and/or Legal Representatives and/or Administrators of the Estate of the Late Karisa Charo Nyamawi); Clan (Intended Interested Party)

Environment and Land Court
29 November 2023
NMN.A. Mathéka
1,570 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court transferred a long-running Kilifi land dispute to Malindi, confirming that land cases must be filed where the property is located.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Mathéka, J) dealt with two applications arising from a long-running land dispute. The applicant, Kahindi Kambi Thebe, sought transfer of Appeal No. 71 of 2008 - originally an appeal against a decision of a panel of elders under the repealed Land Disputes Tribunal Act, adopted as a judgment of the Kaloleni Magistrate's Court, and pending before the defunct Provincial Land Appeals Committee and now before the Principal Magistrate's Court at Kaloleni as Land Case No. 32 of 2014 - to the ELC for hearing and disposal. A second application by Abdalla Kalama Banzi, representing the larger Aparwa clan, sought joinder as an interested party on the basis that the suit land is ancestral clan land. The respondents opposed both applications, contending among other things that the tribunal decision was adopted as judgment in 1999, no appeal was filed within 30 days, and the intended interested party had no locus. The court perused the record and found the suit property is situate in Mariakani Location, Kilifi County, served by the Malindi Environment and Land Court. Applying Sections 12 and 13 of the Civil Procedure Act on territorial jurisdiction, it held that the correct forum is the Malindi ELC and that the Mombasa court had no jurisdiction. It therefore declined to determine the merits of either application and transferred the matter to the Malindi ELC for hearing and determination, with costs in the cause.

Key legal issues

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Territorial jurisdiction of the Environment and Land Court at Mombasa over land situate in Kilifi County

Holding

The Mombasa ELC lacks territorial jurisdiction; the correct forum is the Malindi Environment and Land Court, which serves Kilifi County where the suit property is located

Reasoning

The court applied Sections 12 and 13 of the Civil Procedure Act, which require suits for recovery of, or relief respecting, immovable property to be instituted in the court within whose local limits the property is situate. The property is in Mariakani Location, Kilifi County, and the Kaloleni Magistrate's Court is also in Kilifi County. The Mombasa ELC therefore had no jurisdiction and could not determine the merits of the applications before it.

p. 4

Legal principles established

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  • Territorial jurisdiction over suits relating to immovable property lies with the court within whose local limits the property is situated, per Sections 12 and 13 of the Civil Procedure Act

Court orders

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  1. 1.The matter is transferred to the Environment and Land Court at Malindi for hearing and determination
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 18
  • Civil Procedure ActSection 12
  • Civil Procedure ActSection 13
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Land Disputes Tribunal ActNo. 18 of 1990 (repealed)
  • Constitution of KenyaArticles 40, 46, 50, 159(2)(d)
Jurisdiction invoked
Sections 1A, 1B, 3A and 18 of the Civil Procedure Act (Cap 210) and Order 51 of the Civil Procedure Rules, 2010

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, "Thebe v Charo & 2 others (Sued on their own behalf and/or Legal Representatives and/or Administrators of the Estate of the Late Karisa Charo Nyamawi); Clan (Intended Interested Party)", Case Analysis (2023). Miscellaneous Application E013 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21851/eng@2023-11-29

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