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ELCDismissedELC CASE NO. E002 of 2021· [2024] KEELC 4202 (KLR)

Mohamed & 2 others v Chiwe & 4 others (Environment & Land Case 002 of 2021) [2024] KEELC 4202 (KLR)

Environment and Land Court
13 May 2024
824 words in judgment
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The bottom line

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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

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Executive summary

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The defendants, by a notice of motion dated 16th December 2022 supported by the affidavit of the 2nd defendant, Dambala Guyo Sore, sought transfer of ELC Case No. E002 of 2021 to Moyale Law Courts, or in the alternative Marsabit Law Courts, on grounds that they reside and carry on business in Moyale, the suit land (plot number 1012 MOYALE/BURJI) lies in Moyale Sub County, and transfer would serve the overriding objective and avoid inconvenience. They relied principally on Omar Dhadho v Mohamed Masoud & Another [2019] eKLR, in which a suit was transferred from Mombasa ELC to Malindi ELC. The plaintiff opposed, contending the application was res judicata in light of the court's ruling of 13th December 2021 on jurisdiction, that under Article 162(2)(b) of the Constitution the ELC has original and appellate jurisdiction over all environment and land disputes, and that costs of travel are not a determining factor on venue. The court distinguished Omar Dhadho because it involved transfer between ELC courts of concurrent jurisdiction, whereas there are no ELC courts at Marsabit or Moyale; the nearest ELC court to the suit land is Isiolo. The court found the defendants had failed to legally justify the transfer and dismissed the application, awarding costs of the application to the plaintiff. Judgment was delivered in open court at Isiolo on 13th May 2024 by P.M Njoroge J.

Key legal issues

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01

Whether the suit should be transferred to Marsabit or Moyale Law Courts

Holding

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.

Reasoning

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.

p. 3
02

Res judicata vis-à-vis the ruling of 13th December 2021 on jurisdiction

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The defendants' application dated 16th December 2022 seeking transfer of the suit to Moyale or Marsabit Law Courts is dismissed
  2. 2.Costs shall follow the event and costs of the application are awarded to the Plaintiff

Authorities

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Legislation

  • Environment and Land Court ActSection 3
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 47 Rule 6
  • Constitution of KenyaArticle 162(2)(b)

Cases cited (1)

  • Omar Dhadho Versus Mohamed Masoud and Another
    [2019] eKLR
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

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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, "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.