https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8837

**REPUBLIC OF KENYA** **IN THE REPUBLIC OF KENYA AT MILIMANI** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E1357 OF 2024** **EAST AFRICA GROWERS FRESH** **PRODUCE LTD………………………………………..……..APPELLANT** **VERSUS** **ENZO AGRI LIMITED………………………..……..1ST RESPONDENT** **JAMES NGUGI GATHAIGA………………..………2ND RESPONDENT** *(Being an Appeal from the Judgment of the Hon Paul Rotich(SPM) delivered on 15th November 2024 at the Milimani CM’S Court in Misc Appl No. E1512 of 2024)* **JUDGMENT** 1. This is an appeal from the ruling was delivered on 15th November 2024 by the trial court in response to an originating summons filed on 16th August 2024 by the appellant. 2. The appellant sought orders to sell property known as KILIFI/RARE/398 to recover Kshs. 7,304,277 plus accrued interest arising from an informal charge dated 6th December 2021, as well as an order for vacant possession to facilitate the sale. 3. However, the trial court found that since the title deed deposited with the Chargee relates to land situated in Kilifi County, the trial court lacked jurisdiction to handle the matter. 4. Consequently, the case was struck out with no order as to costs because it was not opposed. 5. After the ruling, Mr. Aziz, appearing for the appellant, sought leave to appeal, but the court noted that the appellant has an automatic right of appeal, and a copy of the ruling was ordered to be supplied. 6. The appellant has appealed against the said ruling on the following grounds; 7. *THAT the Learned Magistrate erred in law and in fact by finding that it lacked territorial jurisdiction to hear and determine the Application contrary to section 15 (c)(3)of the Civil Procedure Act.* 8. *THAT the Learned Magistrate erred in law an in fact by failing to consider evidence placed on record on behalf of the Appellant as regards the place where the contract was entered into.* 9. The appellant submitted that he seeks to set aside the trial court judgment that dismissed its suit for lack of territorial jurisdiction. 10. The matter originated from an application to enforce an informal land charge over property in Kilifi. 11. Although the land is in Kilifi, the Appellant argues that the Nairobi court had proper jurisdiction because the charge agreement was signed in Nairobi and both respondents reside in Nairobi. 12. The Appellant contends that the trial magistrate erred by failing to apply Section 15(c)(3) of the Civil Procedure Act, which establishes that a cause of action for a contract arises where the contract was made. 13. Furthermore, the Appellant asserts that a charge is a commercial transaction rather than an interest in land, supporting the choice of a Nairobi forum. 14. Citing judicial precedents such as **Kanampiu v Marithi and Wenfa Enterprises v Nile Company (Kenya) Limited**, the Appellant submitted that even if territorial jurisdiction were in question, the appropriate remedy should have been a transfer of the case rather than a total dismissal. 15. Consequently, the Appellant urges the High Court to exercise its powers under Section 78(1)(a) of the Civil Procedure Act to finally determine the case, set aside the lower court’s dismissal, and grant the prayers sought in the original summons. 16. The respondent did not file any submissions in this appeal. 17. The issues for determination in this appeal are as follows; 18. *Whether the trial court erred in finding it lacked territorial jurisdiction to entertain a suit for the sale of land and vacant possession situated outside its local limits, and* 19. *Whether the proper remedy for lack of jurisdiction is the dismissal of the suit or its transfer to the appropriate court.* 20. Under Section 12(a) and (c) of the Civil Procedure Act (Cap 21), suits for the recovery of immovable property or for the foreclosure, sale, or redemption in the case of a mortgage or charge must be instituted in the court within the local limits of whose jurisdiction the property is situated. 21. The appellant’s reliance on Section 15 of the Civil Procedure Act is misplaced. 22. Section 15 applies only to "other suits" not covered by the specific mandatory provisions of Sections 12, 13, and 14. Because the appellant sought the sale of KILIFI/RARE/398 and vacant possession, the subject matter is intrinsically tied to the land. 23. Where a suit involves the enforcement of a charge over land, the court where the land is situated has the exclusive territorial jurisdiction. 24. The fact that the contract was signed in Nairobi or that the respondents reside there does not override the clear statutory mandate regarding the location of the res. 25. Furthermore, while the appellant suggests a transfer was the appropriate remedy, it is a settled principle that jurisdiction is a threshold issue. 26. As established in the celebrated case of **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1,** a court must down tools the moment it establishes it lacks jurisdiction. 27. Without jurisdiction, the trial court had no power to make any orders, including an order for transfer, and thus the striking out of the suit was the correct procedural consequence. 28. The trial magistrate cannot be faulted for declining to exercise powers he did not possess over property in Kilifi. 29. Consequently, the appeal lacks merit and it is dismissed with no orders as to costs. **Dated, signed and delivered this 20th day of May 2026 virtually at Nairobi Civil Appellate Division.** **…………………………** **ASENATH ONGERI** **JUDGE** Delivered in the absence of the parties.