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ELCPartially AllowedEnvironment and Land Case 220 of 2011· [2023] KEELC 21930 (KLR)

Kalama & 4 others v Kwale International Sugar Co. Ltd; Ndutumi Auctioneers (Auctioneer); Kituo Cha Sheria (Interested Party)

Environment and Land Court
28 November 2023
NMN.A. Matheka
2,345 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Mombasa Environment and Land Court transferred this land dispute to Kwale, where the property sits, leaving all contested issues undecided.

What this practically means

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Executive summary

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This ruling by N.A. Matheka, J of the Environment and Land Court at Mombasa determines a notice of motion dated 6th July 2023 by Kwale International Sugar Co. Ltd, the Defendant, supported by the 1st Plaintiff. The application sought, among twelve prayers, change of advocates on record, restraint of Ndutumi Auctioneers from dealing with four motor vehicles, an order for return of attached vehicles, a declaration that execution under warrants issued on 7th March 2023 was unlawful, nullification of a Notice of Change of Advocates and Consent filed on 27th February 2023, review or setting aside of a settlement agreement dated 26th May 2016 adopted as a court order on 2nd October 2017, and transfer of the matter to the Environment and Land Court at Kwale. The Defendant contended the warrants had expired, the auctioneer acted on instructions from advocates not properly on record, and the consent was fraudulently procured. The Respondents opposed, maintaining the warrants were valid and the consent had been partially complied with. The court framed a preliminary issue of territorial jurisdiction, applied Sections 12 and 13 of the Civil Procedure Act, and found the suit property Kwale/Kiwegu Jego/24 lies in Kwale County, served by the Kwale Environment and Land Court. Noting related pending proceedings in Kwale and serious irregularities regarding representation, the court declined to determine the substantive issues for lack of jurisdiction. It granted only prayer 2, transferring the matter to the ELC at Kwale, with costs in the cause.

Key legal issues

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01

Territorial jurisdiction over the suit property

Holding

The correct forum is the Environment and Land Court at Kwale since the suit property Kwale/Kiwegu Jego/24 is situate in Kwale County and the parties reside there

Reasoning

The court applied Sections 12 and 13 of the Civil Procedure Act on venue for suits respecting immovable property. It found the property is in Kwale County, served by the Kwale Environment and Land Court, and that related pending matters between the same parties are also in Kwale. It therefore transferred the matter rather than determine the contested execution and representation issues.

p. 5
02

Whether the court could determine the alleged irregular execution, fraudulent consent and improper representation

Holding

The court declined to determine these issues, holding it lacked jurisdiction and that the Kwale ELC is the proper forum

Reasoning

Although the court noted serious irregularities regarding representation and alleged fraud in the consent, it held it could not determine them for lack of jurisdiction. Those substantive questions - expiry of warrants, validity of the auctioneer's instructions, and setting aside the consent - remain for the transferee court.

p. 5

Legal principles established

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  • A suit relating to immovable property must be instituted in the court within whose local limits the property is situate, subject to the proviso in Section 12 of the Civil Procedure Act

Court orders

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

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 1A, 3A, 80, 12, 13
  • Civil Procedure Rules, 2010Order 10 Rule 11, Order 45 Rule 1, Order 50 Rule 6
Jurisdiction invoked
Section 12 and Section 13 of the Civil Procedure Act, Cap 21 (territorial jurisdiction); Article 162(2)(b) ELC jurisdiction (implied)

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, "Kalama & 4 others v Kwale International Sugar Co. Ltd; Ndutumi Auctioneers (Auctioneer); Kituo Cha Sheria (Interested Party)", Case Analysis (2023). Environment and Land Case 220 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21930/eng@2023-11-28

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