Shish Vendors Limited v Mzungu & another (Miscellaneous Application E003 of 2025) [2025] KEELC 1095 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a Kwale land suit to be moved to Msambweni because that best served a fair, speedy hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant made out a case for transfer of MCELC E027 of 2024 from Kwale to Msambweni under Section 18 of the Civil Procedure Act
The application was allowed. Although the applicant failed to expressly stipulate reasons for discomfort with Hon. Lewa handling the matter, the Court found that denying the transfer would contravene the overriding objective of the Civil Procedure Act.
The Court reiterated that transfer under Section 18 is discretionary and the applicant bears the burden of making a strong case, drawing on David Kabungu v Zikarenga and Hangzhou Agrochemicals Industries Ltd v Panda Flowers Ltd. The two suits were found to be distinct in parties and cause of action. The Court held that although the applicant's reasons lacked substantiated backing, refusing the transfer would work contrary to the overriding objective of just, expeditious and affordable resolution, and in the interest of justice allowed the transfer to Msambweni.
Who should bear the costs of the application
No orders as to costs, despite the general principle that costs follow the event.
The Court acknowledged that under Section 27(1) of the Civil Procedure Act costs follow the event and the successful party is typically entitled to costs, citing Harun Mutwiri v Nairobi City County Government and Kenya Union of Commercial, Food and Allied Workers v Bidco Africa Ltd. However, invoking its discretion, the Court elected not to award costs to the successful applicant.
Legal principles established
#- The power to transfer a suit under Section 18 of the Civil Procedure Act is discretionary and the burden of providing sufficient reasons for the transfer rests with the Applicant
- Costs follow the event, but the award of costs is at the discretion of the Court
Court orders
#- 1.The Notice of Motion application dated 20th January, 2025 be and is hereby found to have merit and thus allowed
- 2.An order made for the Deputy Registrar Kwale to ensure that the file for the Civil Suit No. MCELC E027 OF 2024 Shish Vendors Limited – Versus - Allan Mzungu Mwamuye & Another be transferred to the Msambweni Principal Magistrate's Court for hearing and determination
- 3.Unless otherwise stated, the Civil Suit No MCELC/77/2019 shall continue being handled before Kwale Law Courts by the Hon. Lewa (PM)
- 4.The matter to be mentioned on 25th March, 2025 before the Principal Magistrate Msambweni in the presence of all parties for further directions
- 5.There shall be no orders as to costs
- Jurisdiction invoked
- Section 18 of the Civil Procedure Act, Cap. 21; Article 165(6) of the Constitution (supervisory jurisdiction over subordinate courts)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shish Vendors Limited v Mzungu & another (Miscellaneous Application E003 of 2025) [2025] KEELC 1095 (KLR)", Case Analysis (2025). MCELC No. E027 of 2024 (Notice of Motion dated 20th January, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1095/eng@2025-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.