Mohamed & 2 others v Chiwe & 4 others (Environment & Land Case 002 of 2021) [2024] KEELC 4202 (KLR)
The bottom line
#Kenya's Environment and Land Court in Isiolo refused to transfer a land case to Marsabit or Moyale because neither town has an ELC court.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit should be transferred to Marsabit or Moyale Law Courts
The application was dismissed because the defendant's preferred destination courts have no ELC jurisdiction; the nearest ELC court to the suit land is Isiolo, where the suit is already filed.
The defendants relied on Omar Dhadho v Mohamed Masoud, where a case was transferred between ELC courts of concurrent jurisdiction. The court distinguished it: unlike in that case, Marsabit and Moyale have no ELC courts at all, so transferring there would take the suit outside the specialized court's structure. The court held the defendants failed to legally convince it that transfer was warranted, and dismissed the application with costs to the plaintiff.
Res judicata vis-à-vis the ruling of 13th December 2021 on jurisdiction
The court found it unnecessary to determine the res judicata objection definitively, holding its decision would not be affected by the parties' allegations about the transfer.
The plaintiff argued the application was res judicata since the defendants had earlier, by an application dated 13th December 2021, challenged the court's jurisdiction. The defendants countered that they had established cogent reasons for transfer. The court side-stepped the objection, stating its decision would not be affected by allegations including threats, which could only be considered at the substantive hearing of the suit.
Legal principles established
#- A transfer of a suit to a court of concurrent jurisdiction authority is of no assistance where the destination courts lack the specialized jurisdiction to hear the suit
Court orders
#- 1.The defendants' application dated 16th December 2022 seeking transfer of the suit to Moyale or Marsabit Law Courts is dismissed
- 2.Costs shall follow the event and costs of the application are awarded to the Plaintiff
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (ELC jurisdiction); Sections 3 and 3A of the Civil Procedure Act and Order 47 Rule 6 of the Civil Procedure Rules invoked on the transfer application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed & 2 others v Chiwe & 4 others (Environment & Land Case 002 of 2021) [2024] KEELC 4202 (KLR)", Case Analysis (2024). ELC CASE NO. E002 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4202/eng@2024-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.