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ELCPartially AllowedNotice of Motion dated 14th June 2023 (in relation to Nakuru CMELC No. 160 of 2022)· [2024] KEELC 3578 (KLR)

Aradi v Moraa & 3 others (Environment and Land Miscellaneous Application E32 of 2023) [2024] KEELC 3578 (KLR)

Environment and Land Court
11 April 2024
LOL. A. Omollo
2,620 words in judgment
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The bottom line

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A Kericho court moved a land dispute from Nakuru to Kakamega because the disputed property is located in Kakamega County.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) determined a Notice of Motion dated 14th June 2023 by Brian Aradi, the Applicant, seeking either that Nakuru CM ELC No. 160 of 2022 (Brian Aradi v Hebby Moraa & 3 Others) continue to be heard in Nakuru, or in the alternative that it be transferred to the Environment and Land Court at Kakamega. The underlying suit concerns land parcel Isukha/Lubao/1024, located in Kakamega County, which the Applicant claims was lost through the unlawful transfer by administrators of the estate of Manoah Kisame Aradi. A preliminary objection on territorial jurisdiction had been raised in the subordinate court, prompting the Applicant to seek transfer. The 3rd and 4th Respondents, though filing submissions opposing the application on grounds of res judicata, defect of the suit and bad faith, filed no response to the application. The court framed two issues: whether the orders sought should be granted, and costs. Relying on Section 18 of the Civil Procedure Act and the transfer principles in David Kabungu v Zikarenga as cited in Oceanic Towers Limited v Husseini Builders Limited, and applying the overriding objective in Sections 1A and 1B, the court held that since the suit property lies in Kakamega County and transfer would cause no prejudice to the Respondents, transfer was appropriate. It declined to consider the Respondents' submissions as they raised unpleaded factual matters. The application was allowed in terms of the alternative prayer, with the suit transferred to the Kakamega Environment and Land Court and costs of the application in the cause.

Key legal issues

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01

Whether Nakuru CM ELC No. 160 of 2022 should be retained in Nakuru or transferred to the Environment and Land Court at Kakamega

Holding

The application was allowed and the suit transferred to the Kakamega Environment and Land Court, as the suit property is located in Kakamega County and transfer causes no prejudice to the Respondents.

Reasoning

The court noted it is not disputed that land parcel Isukha/Lubao/1024 is located in Kakamega County. Applying the principles in David Kabungu v Zikarenga on Section 18 transfers, and the overriding objective in Sections 1A and 1B of the Civil Procedure Act, the court found the Applicant sought transfer in the interest of justice and that no prejudice would befall the Respondents. The Respondents filed no response, and the court declined to consider their submissions raising unpleaded factual questions.

p. 6
02

Whether the court should consider the 3rd and 4th Respondents' submissions in the absence of any filed response

Holding

The court declined to take the submissions into consideration because they raised questions of fact not placed before the court by affidavit evidence.

Reasoning

The 3rd and 4th Respondents did not file a response to the application despite service. Their submissions delved into matters of fact (res judicata, bad faith, prior litigation) that should have been adduced through affidavit evidence. A court cannot determine contested factual issues raised for the first time in submissions without a supporting affidavit or response on record.

p. 6

Legal principles established

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  • The High Court (and by extension courts exercising transfer jurisdiction) has power under Section 18(1) of the Civil Procedure Act to transfer suits at any stage, and the applicant bears the burden of making out a strong case for transfer; want of jurisdiction of the court from which transfer is sought is no ground for refusing transfer.
  • Costs follow the event in accordance with Section 27 of the Civil Procedure Act.

Court orders

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  1. 1.The suit Nakuru CM ELC No. 160 of 2022; Brian Aradi -vs- Hebby Moraa & 3 Others is hereby transferred to Kakamega Environment and Land Court for hearing and determination.
  2. 2.The cost of the application shall be in the cause.

Authorities

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Legislation

  • Civil Procedure ActSections 11, 18, 1A, 1B, 3A, 7, 15, 27
  • Civil Procedure RulesOrder 51 Rule 1
  • Constitution of KenyaArticles 162(2)(b) and 165

Cases cited (8)

  • Greenfield Investments Limited & another vs State of the Republic of Kenya & 3 Others
    [2013] eKLR
  • The Independent Electoral and Boundaries Commission vs Maina Kiai & 5 Others
    [2017] eKLR
  • Abraham Mwangi Wamigwi vs Simon Mbiriri Wanjiku & another
    [2012] eKLR
  • Boniface Waweru Mbiyu vs Mary Njeri & another
  • The Owners of Motor Vessel "Vessel S" vs Caltex Oil Kenya Limited
    (1989) KLR 1
  • Wamathu Gichonya vs Mary Wainoi Magu
    [2015] eKLR
  • Oceanic Towers Limited v Husseini Builders Limited
    [2021] eKLR
  • David Kabungu v Zikarenga & 4 others
    Kampala HCCS No. 36 of 1995
Jurisdiction invoked
Sections 11, 18, 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules

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, "Aradi v Moraa & 3 others (Environment and Land Miscellaneous Application E32 of 2023) [2024] KEELC 3578 (KLR)", Case Analysis (2024). Notice of Motion dated 14th June 2023 (in relation to Nakuru CMELC No. 160 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3578/eng@2024-04-11

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