[2021] KEELC 1974 (KLR)
The court determined that the plaintiff's claim, being based on an advocate's lien over shares in a company and not on ownership or title to land, does not fall within the jurisdiction of the Environment and Land Court. The proper forum for such a claim is the High Court Civil Division. Accordingly, in the interest...
Source-derived case information.
- Citation
- [2021] KEELC 1974 (KLR)
- Parties
- Plaintiff: Edwin K. Njagi t/a E.K. Njagi & Co. Advocates; Defendant: Fig Tree Hotel Limited; Defendant: Lucy Waithira Mwangi; Defendant: John Irungu Githinji; Defendant: Julius Kariuki Mwangi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 1511 of 2016
- Procedural Posture
- Civil Suit / Ruling on Jurisdiction and Transfer
- Outcome
- suit transferred to the High Court Civil Division for hearing and determination
- Judges
- AK Bor
- Legal Topics
- Advocate Lien, Jurisdiction, Transfer of Suit, Shareholding Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edwin K. Njagi t/a E.K. Njagi & Co. Advocates
Plaintiff
Fig Tree Hotel Limited
Defendant
Lucy Waithira Mwangi
Defendant
John Irungu Githinji
Defendant
Julius Kariuki Mwangi
Defendant
Procedural Posture
Civil Suit / Ruling on Jurisdiction and Transfer
Legal Issues
- 1 Does the Environment and Land Court have jurisdiction to determine a claim based on an advocate's lien over shares in a company relating to land?
- 2 Is the plaintiff entitled to a lien over the 2nd, 3rd, and 4th defendants' shares in the 1st defendant and the suit property?
- 3 Should the suit be transferred to the appropriate court for determination?
Ratio Decidendi
The court determined that the plaintiff's claim, being based on an advocate's lien over shares in a company and not on ownership or title to land, does not fall within the jurisdiction of the Environment and Land Court. The proper forum for such a claim is the High Court Civil Division. Accordingly, in the interest of justice, the suit was ordered to be transferred to the High Court Civil Division for hearing and determination.
Court Disposition
suit transferred to the High Court Civil Division for hearing and determination
Orders
- The suit is transferred to the High Court Civil Division for hearing and determination.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CIVIL SUIT NO. 1511 OF 2016
EDWIN K. NJAGI T/A
E.K. NJAGI & CO. ADVOCATES...................................PLAINTIFF
VERSUS
FIG TREE HOTEL LIMITED...............................1ST DEFENDANT
LUCY WAITHIRA MWANGI...............................2ND DEFENDANT
JOHN IRUNGU GITHINJI.....................................3RD DEFENDANT
JULIUS KARIUKI MWANGI.................................4TH DEFENDANT
RULING
The 2nd, 3rd and 4th Defendants instructed the Plaintiff who is an Advocate of the High Court of Kenya to act for them in a dispute relating to the running of the 1st Defendant and its shareholding. The Plaintiff filed Nairobi HCC No. 454 of 2008 in line with those instructions. A consent was recorded vide which the dispute was referred to arbitration. After the final arbitral award was made, the 2nd, 3rd and 4th Defendants terminated the Plaintiff’s services following which the Plaintiff filed a bill of costs, which was taxed at Kshs. 32,447,332/= on 14/6/2010.
The Plaintiff filed this suit on 2/12/2016 and averred that he had established that the 1st Defendant was at an advanced stage of disposing of the property known as Fig Tree Hotel erected on land reference number (L.R. No.) 209/9510 (Original Number 209/1803/4) Ngara, Nairobi County (“the Suit Property”). He averred that the 2nd, 3rd and 4th Defendants’ shares in the 1st Defendant were their only known assets. He claimed that he had a lien to the 2nd, 3rd and 4th Defendants’ shares in the Suit Property since the instructions the 2nd, 3rd and 4th Defendants gave to him related to their shareholding in the 1st Defendant. Further, that if the 2nd, 3rd and 4th Defendants’ shares of proceeds from the sale of the Suit Property were released to them he would lose whatever entitlement to lien that he may enjoy in the Suit Property.
The Plaintiff seeks a declaration that he is entitled to a lien over the 2nd, 3rd and 4th Defendants’ shares in the 1st Defendant and that he is entitled to their shares in L.R. No. 209/9510. Further, he seeks a permanent injunction to restrain the 1st Defendant or its agents from releasing to the 2nd, 3rd and 4th Defendants their share of the sale proceeds from the Suit Property together with costs of the suit and interest.
The suit was heard on 14/6/2021. Plaintiff and the Defendant each called one witness. The court directed parties to file submissions. When the court retired to write its judgement, it noted that the Plaintiff’s claim does not relate to ownership of land or title to land.
The Plaintiff’s claim is based on a lien over the 2nd, 3rd and 4th Defendants shares in the suit land. The claim for lien does not fall within the jurisdiction of this court. In the interest of justice, this suit will be transferred to the High Court Civil Division for hearing and determination.
Delivered virtually at Nairobi this 9th day of September 2021.
K. BOR
JUDGE
In the presence of: -
Mr. V. Owuor- Court Assistant
No appearance for the Plaintiff and the Defendant