[2011] KEHC 1963 (KLR)
The court found that the suit was improperly filed at the High Court in Nairobi instead of Nyeri, as required by section 12 of the Civil Procedure Act, since the subject land is situated in Nyeri District. The plaintiff also failed to properly name the trustees as required by Order 31 rule 2. Although there was...
Source-derived case information.
- Citation
- [2011] KEHC 1963 (KLR)
- Parties
- Plaintiff: Gospel Bible Baptist Mission (GBBM); Defendant: Alfred Robert Lackey; Defendant: Kids Alive International; Defendant: Kids Alive Registered Trustees
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2234 of 2007
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- Preliminary objection sustained; suit struck out for want of jurisdiction; leave granted to file at Nyeri High Court.
- Legal Topics
- Jurisdiction of Court, Venue of Suit, Trusteeship Requirements, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gospel Bible Baptist Mission (GBBM)
Plaintiff
Alfred Robert Lackey
Defendant
Kids Alive International
Defendant
Kids Alive Registered Trustees
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court at Nairobi has jurisdiction over the land dispute concerning parcel No. Nyeri/Lusoi/1021.
- 2 Whether the plaintiff, described as Gospel Bible Baptist Mission suing through its Registered Trustees, properly named the trustees as required by law.
- 3 Whether the amended plaint filed on 22nd November 2007 was properly filed with leave of the court.
Ratio Decidendi
The court found that the suit was improperly filed at the High Court in Nairobi instead of Nyeri, as required by section 12 of the Civil Procedure Act, since the subject land is situated in Nyeri District. The plaintiff also failed to properly name the trustees as required by Order 31 rule 2. Although there was ambiguity regarding whether leave to amend the plaint had lapsed, the court resolved this in favour of the plaintiff. However, the fundamental issue of jurisdiction could not be cured by agreement of the parties or by procedural amendments. The court therefore sustained the defendants' preliminary objection, struck out the suit for want of jurisdiction, and granted the plaintiff...
Court Disposition
Preliminary objection sustained; suit struck out for want of jurisdiction; leave granted to file at Nyeri High Court.
Orders
- The preliminary objection by the defendants is sustained with costs.
- The suit is struck out for want of jurisdiction.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 2234 OF 2007
GOSPEL BIBLE BAPTIST MISSION (GBBM) ……….................…..PLAINTIFF
V E R S U S
ALFRED ROBERT LACKEY ………………..................…..….1ST DEFENDANT
KIDS ALIVE INTERNATIONAL …………..................….……2ND DEFENDANT
KIDS ALIVE REGISTERED TRUSTEES …...............……….3RD DEFENDANT
R U L I N G
This suit is over a parcel of land No. Nyeri/Lusoi/1021 within Nyeri District. Under section 12 of the Civil Procedure Act (Cap. 21) the case ought to have been filed at the High Court in Nyeri. Secondly, the Plaintiff describes itself as “Gospel Bible Baptist Mission (GBBM) suing through its Registered Trustees”. It is alleged in the Plaint that the suit property is vested in the Trustees. Under Order 31 rule 2 the Trustees should have been named.
Lastly, there is the question whether the Amended Plaint filed on 22nd November 2007 was with leave of the court. The Plaintiff’s counsel states that leave was granted on 6th November 2007. The Defendants counsel appears to agree that on 6th November 2007 leave was granted for the amendment but says the same lapsed on 20th November 2007. I have read the record regarding the proceedings of 6th November 2007. The order made on that day is not clear. I have to resolve the matter in favour of the Plaintiff. However, the amendment did not meet the requirements of the law.
I consider that on the same 6th November 2007 the parties agreed to have the main suit heard. The Preliminary Objection dated 26th November 2007 would therefore go against that agreement. However, even such agreement would not confer jurisdiction to the court where none exists.
This is a land matter that has been in court since 2007. Given what has happened as shown by the record, and the provisions of sections 1A and 1B of the Civil Procedure Act and Article 159 (2) (d) of the Constitution of Kenya 2010, the objection by the Defendants is sustained with costs. However, leave of 14 days is granted to the Plaintiff to file a compliant suit at the High Court at Nyeri,
DATED AND DELIVERED AT NAIROBI
THIS 12TH DAY OF MAY 2011
A.O. MUCHELULE
J U D G E