[2021] KEELC 3822 (KLR)
The court found that the valuation report by Tyson’s Ltd established the value of the land at Kshs. 1,500,000 and the value of buildings and site works at Kshs. 13,900,000, making the total value of the property Kshs. 15,400,000. It is a settled legal principle that the value of land includes improvements. Since the...
Source-derived case information.
- Citation
- [2021] KEELC 3822 (KLR)
- Parties
- Applicant: James Otieno Oyugi; Respondent: Daniel Abura Juma (Suing as administrator of the Estate of the late Amos Juma Abelo alias Malowa Abura); Respondent: Rose Abura
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 20 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit for Want of Pecuniary Jurisdiction
- Outcome
- application allowed
- Judges
- A Ombwayo
- Legal Topics
- Pecuniary Jurisdiction, Transfer of Suit, Valuation of Land, Magistrates Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Otieno Oyugi
Applicant
Daniel Abura Juma (Suing as administrator of the Estate of the late Amos Juma Abelo alias Malowa Abura)
Respondent
Rose Abura
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit for Want of Pecuniary Jurisdiction
Legal Issues
- 1 Whether the Principal Magistrate Court at Bondo has pecuniary jurisdiction to hear and determine the suit concerning the subject property.
- 2 Whether the suit should be withdrawn from the Principal Magistrate Court at Bondo and transferred to the Environment and Land Court at Kisumu.
Ratio Decidendi
The court found that the valuation report by Tyson’s Ltd established the value of the land at Kshs. 1,500,000 and the value of buildings and site works at Kshs. 13,900,000, making the total value of the property Kshs. 15,400,000. It is a settled legal principle that the value of land includes improvements. Since the pecuniary jurisdiction of the Principal Magistrate Court at Bondo is Kshs. 10,000,000, the court held that the lower court lacks jurisdiction to entertain the matter. Consequently, the suit pending before the Principal Magistrate Court at Bondo was ordered to be transferred to the Environment and Land Court at Kisumu for hearing and determination.
Court Disposition
application allowed
Orders
- The suit pending in Principal Magistrate Court Bondo ELC No. 6 of 2020 is hereby transferred to the Environment and Land Court at Kisumu for hearing and determination.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC MISCELLENOUS APPLICATION CASE NO. 20 OF 2020
JAMES OTIENO OYUGI.........................................................................................APPLICANT
VERSUS
DANIEL ABURA JUMA (Suing as administrator of the
Estate of the late AMOS JUMA ABELO alias MALOWA ABURA...........1ST RESPONDENT
ROSE ABURA................................................................................................2ND RESPONDENT
RULING
James Otieno Oyugi (hereinafter referred to as the applicant) has come to court against Daniel Abura Juma suing as administrator of the Estate of the late Amos Juma Abelo alias Malowa Abura and Rose Abura hereinafter referred to as the Respondents for orders that this honourable court be pleased to withdraw PMCC case No. 6 of 2020 Daniel Abura Juma suing as administrator of the estate of the late Juma Abelo alias Malowa Abura versus Rose Abura and James Otieno Oyugi.
The application is based on grounds that the pecuniary jurisdiction of the Principal Magistrate court at Bondo and of the Magistrate is way below the actual value of the suit property. The actual value of the suit property is far in excess of Kshs. 20,000,000/- while the forced sale value thereof is Kshs. 15,400,000/.
It follows therefore that the Principal Magistrate court at Bondo therefore lacks pecuniary jurisdiction to hear and determine the said suit. The only court that has the jurisdiction to hear and determine the said suit is this honourable court. In the premises, it is only fair and just that this honourable court withdraws the said suit from the principal magistrate court at Bondo, transfers it to itself and thereafter proceed to hear and dispose of the same.
The application is based on the affidavit of James Otieno Oyugi who states that he is the registered proprietor of the suit property and that there is a case pending in the Principal Magistrate Court Bondo in ELC No. 6 of 2020 seeking cancellation of the title. The value of the said property is for in excess of Kshs. 20,000,000/- while the parcel value thereof is Kshs. 15,400,000/-. The Principal Magistrates court Bondo therefore lacks jurisdiction to hear and determine the matter. The only court that has jurisdiction is this court.
The Respondent filed grounds of opposition that the Principal Magistrates Court Bondo has pecuniary jurisdiction of Kshs 10 million. The value of the property in dispute is 1. 5 million. The subject matter is within the jurisdiction of Bondo Principal Magistrates court.
The applicant submits that the actual value of the subject matter is Kshs. 20,000,000/-. The fraud value is Kshs. 15,400,000. It exceeds the jurisdiction of the Principal Magistrates court Bondo. The applicant states that the value of land includes the fixtures.
I have considered the application and do find that the report and valuation made by Tyson’s Ltd signed by K.K. Ogora, B. Real Estates G.M.I.S.K and S.O. Omayo B. A dated 4/6/2020 put the value of the land without improvements at Kshs 1,500,000/- and the value of buildings and site works at Kshs 13,900,000/-. It is trite law that the value of land includes the improvements on the same and therefore the preliminary evidence on record is that the property is valued at more than 10,000,000 though the same has not been tested by the court and that there is no other report prepared by an expert valuer shown to court. I do find that the applicant has demonstrated that the value of the property is Kshs. 15,400,000. The pecuniary jurisdiction of the Principal Magistrate Bondo is Kshs. 10,000,000.
The upshot of the above is that the Principal Magistrates Court Bondo lacks jurisdiction to entertain the matter. The same is hereby transferred to Kisumu Environment and Land Court for hearing and determination. Costs of the application in the cause.
DATED AT KISUMU THIS 19TH DAY OF MARCH, 2021
ANTONY OMBWAYO
JUDGE
This Ruling has been delivered to the parties by electronic mail due to measures restricting court operations due to the COVID-19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice on 15th March 2019.
ANTONY OMBWAYO
JUDGE