Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in judgment· [2024] KEELC 4632 (KLR)

Ndambuki & 4 others v Kanyi & another (Environment & Land Case 29 of 2023) [2024] KEELC 4632 (KLR)

Environment and Land Court
13 June 2024
NMN.A. Matheka
1,135 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Land cases must be filed where the property sits: the Mombasa court transferred a Kilifi land dispute to Malindi instead of striking it out.

What this practically means

#

Executive summary

#
The Defendants filed a preliminary-objection-style application dated 30th April 2023 under Sections 1A, 1B, 3A and 63(c) & (e) of the Civil Procedure Act, Order 40 and Order 51 of the Civil Procedure Rules and the Arbitration Act, seeking orders that the Mombasa Environment and Land Court lacks jurisdiction to determine the Plaintiffs' suit, first because Clause R of the Sale Agreement provides for arbitration, and alternatively because the cause of action did not arise within the court's geographical jurisdiction, the suit properties being in Mtwapa, Kilifi County. The Plaintiffs opposed, noting that they reside in various parts of the country, mostly Mombasa, that the agreements were signed in Mombasa, and invoking Sections 12 and 13 of the Civil Procedure Act on venue. The court, citing Article 162(2)(b) of the Constitution and Section 13(2) of the ELC Act, and applying the Supreme Court's decision in Samuel Kamau Macharia, held that jurisdiction is conferred by the Constitution and statute and not by the parties. Finding that the Plaintiffs' claim for registered leases and a permanent injunction is for determination of a right or interest in immovable property situated in Kilifi County, the court held that the proper forum is the Malindi Environment and Land Court. Having found no territorial jurisdiction, it declined to determine the arbitration ground, rejected the 2nd Respondent's submission that the suit should be struck out rather than transferred, and transferred the suit to Malindi, with costs in the cause.

Key legal issues

#
01

Territorial jurisdiction of the ELC Mombasa over a suit concerning land in Kilifi County

Holding

The court lacks territorial jurisdiction as the suit property is in Kilifi County, which is served by the Malindi Environment and Land Court

Reasoning

The court examined Section 12 of the Civil Procedure Act on territorial jurisdiction and the pleadings, finding the plaintiffs seek mandatory orders for issuance of registered leases and a permanent injunction, which is broadly a determination of a right or interest in immovable property. Since the suit property (Sub Division Number 1528 Section IV/Mainland North) is situate in Kilifi County, the correct forum is the Malindi Environment and Land Court.

p. 3
02

Remedy where the court lacks territorial jurisdiction - strike out or transfer

Holding

The ELC may transfer the matter to the proper ELC station rather than strike it out, deriving power from Section 13(2) of the ELC Act

Reasoning

The 2nd Respondent argued the proper court would be the High Court and that this court should strike out the suit rather than transfer it. The court disagreed, holding that Section 13(2) of the ELC Act gives the Environment and Land Court power to hear and determine disputes relating to land and contracts granting enforceable interests in land, and accordingly transferred the matter to Malindi.

p. 3
03

Whether the existence of an arbitration clause ousts the court's jurisdiction

Holding

Not determined, because the court found it lacked territorial jurisdiction

Reasoning

Although the application raised the arbitration clause (Clause R of the Sale Agreement) as the primary ground, the court found it had no territorial jurisdiction and therefore could not determine the arbitration question. The territorial jurisdiction finding disposed of the application without the arbitration issue being reached.

p. 3

Legal principles established

#
  • Jurisdiction flows from the Constitution or legislation and cannot be conferred by parties or assumed by the court
  • A suit for determination of a right or interest in immovable property should 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

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

Authorities

#

Legislation

  • Civil Procedure Act CAP 21 Laws of KenyaSections 1A, 1B, 3A, 63(c) & (e); Section 12; Section 13
  • Civil Procedure Rules, 2010Order 40 Rules 1 & 4; Order 51 Rules 1, 3 & 12
  • Arbitration Act (No.4 of 1995)Not specified
  • Constitution of Kenya 2010Article 162(2)(b)
  • Environment and Land Court ActSection 13(2)

Cases cited (1)

  • Samuel Kamau Macharia and Another vs Kenya Commercial Bank Limited & 2 others
    (2012) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya 2010; Section 13(2) of the Environment and Land Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ndambuki & 4 others v Kanyi & another (Environment & Land Case 29 of 2023) [2024] KEELC 4632 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4632/eng@2024-06-13

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