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ELCAllowedNot stated in the judgment· [2024] KEELC 890 (KLR)

Varsani & another v Kokoi & 8 others; Dzombo (Interested Party) (Environment & Land Case 189 of 2015) [2024] KEELC 890 (KLR)

Environment and Land Court
21 February 2024
EME. K. Makori
837 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's ELC Malindi moved a long-running Mariakani land case to Mombasa, showing courts will transfer venue where convenience, health and fairness clearly favour it.

What this practically means

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Executive summary

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This is an interlocutory ruling by the Environment and Land Court at Malindi (E. K. Makori, J) on an application dated 9th March 2020 seeking the transfer of a long-running land matter to the ELC at Mombasa for final hearing and disposal, on the ground that the suit property is at Mariakani and the applicant suffers from a long-standing illness requiring him to avoid long-distance travel. All respondents did not oppose the application except the 1st respondent, who argued that the applicant was pursuing personal convenience, that not all advocates come from Mombasa, and that the applicant should have attended the hearing to avoid disrupting the trial. The court framed a single issue: whether the matter should be sent to the Mombasa ELC for final disposal. Adopting the factors set out in Hangzhou Agrochemical Industries Ltd v Panda Flowers Limited - the motive and character of the proceedings, nature of relief, interests of litigants, convenience, expense, balance of convenience and possible undue hardship - the court noted the matter's age, that it had begun in the Mombasa Law Courts, that the parties reside at Mariakani which is closer to Mombasa than Malindi, and that all parties except the 1st respondent's Malindi-based advocate favoured relocation. Weighing the applicant's medical condition and the balance of convenience, while expressly guarding against forum shopping, the court allowed the application and sent the file to the Mombasa ELC for final disposal, with costs in the cause. Ruling delivered virtually at Malindi on 21st February 2024.

Key legal issues

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Whether the court should transfer the matter to the ELC Mombasa for final disposal

Holding

The application was allowed because the suit property is at Mariakani, closer to Mombasa ELC, the parties reside at Mariakani, the majority of counsel are from Mombasa, and the applicant's medical condition makes long-distance travel inadvisable.

Reasoning

The court applied the factors in Hangzhou Agrochemical Industries Ltd v Panda Flowers Ltd: motive and character of proceedings, nature of relief, interests of litigants, convenience of justice, expense, balance of convenience and undue hardship. The applicant's illness and doctor's advice against long-distance travel, plus the proximity of Mariakani to Mombasa and the fact that all parties except the 1st respondent's Malindi-based advocate favoured the transfer, tipped the balance of convenience in favour of Mombasa ELC.

p. 2

Legal principles established

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  • The transfer of a matter to another court is discretionary and is guided by the motive and character of the proceedings, the nature of the relief sought, the interests of the litigants, convenience of administration of justice, expense, balance of convenience, interest of justice and possibility of undue hardship; where the court is left in doubt the application must be refused.

Court orders

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  1. 1.The application dated 9th March 2020 is allowed: the matter is moved to the ELC Court Mombasa for final disposal
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure Act (implied by the quoted passage)Sections 12, 13, 14 and 15

Cases cited (1)

  • Hangzhou Agrochemical Industries Ltd v Panda Flowers Limited
    (Civil Suit 97 of 2009) [2012] KEHC 1937 (KLR) (Civ) (8 October 2012)
Jurisdiction invoked
Inherent discretion of the court to direct that a matter filed in its registry be heard in another court (Sections 12, 13, 14 and 15 of the Civil Procedure Act noted as useful guidelines)

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, "Varsani & another v Kokoi & 8 others; Dzombo (Interested Party) (Environment & Land Case 189 of 2015) [2024] KEELC 890 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/890/eng@2024-02-21

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