[2014] KEELC 204 (KLR)
The court found that while Section 12(d) of the Civil Procedure Act requires suits concerning immovable property to be filed in the court within whose jurisdiction the property is situated, striking out the suit for being filed in the wrong court would be unduly harsh and would not resolve the substantive dispute...
Source-derived case information.
- Citation
- [2014] KEELC 204 (KLR)
- Parties
- Plaintiff: Lamu Breeze Investment Limited; Plaintiff: Equatorial Commercial Bank Limited; Defendant: Charles Malakwen; Defendant: Lucas Chimera Kenga; Defendant: DIM Properties Limited; Defendant: The Senior Registrar of Titles; Defendant: County Government of Kilifi; Defendant: The Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 78 of 2013
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Jurisdiction and Venue
- Outcome
- suit transferred to proper court
- Judges
- SN Mukunya
- Legal Topics
- Jurisdiction of Court, Transfer of Suit, Venue of Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lamu Breeze Investment Limited
Plaintiff
Equatorial Commercial Bank Limited
Plaintiff
Charles Malakwen
Defendant
Lucas Chimera Kenga
Defendant
DIM Properties Limited
Defendant
The Senior Registrar of Titles
Defendant
County Government of Kilifi
Defendant
The Hon. Attorney General
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Jurisdiction and Venue
Legal Issues
- 1 Whether the suit was filed in the correct court as required by law.
- 2 Whether the suit should be struck out or transferred to the appropriate court.
Ratio Decidendi
The court found that while Section 12(d) of the Civil Procedure Act requires suits concerning immovable property to be filed in the court within whose jurisdiction the property is situated, striking out the suit for being filed in the wrong court would be unduly harsh and would not resolve the substantive dispute between the parties. Instead, the court exercised its discretion to transfer the suit to the Malindi Environment and Land Court, which has the proper territorial jurisdiction over the subject property located in Kilifi County. This approach ensures that the matter is determined on its merits without unnecessary procedural delays or prejudice to the parties.
Court Disposition
suit transferred to proper court
Orders
- The suit is transferred to the Malindi Environment and Land Court Registry.
- The matter shall be placed before a judge at Malindi for further directions, orders, and final determination.
Full Case Text
Judgment text and source record
26 paragraphs
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC. NO. 78 OF 2013
LAMU BREEZE INVESTMENT LIMITED
EQUATORIAL COMMERCIAL BANK LIMITED .................. PLAINTIFFS
- V E R S U S -
1. CHARLES MALAKWEN
2. LUCAS CHIMERA KENGA
3. DIM PROPERTIES LIMITED
4. THE SENIOR REGISTRAR OF TITLES
5. COUNTY GOVERNMENT OF KILIFI
6. THE HON. ATTORNEY GENERAL .................................. DEFENDANTS
RULING
[1] The Preliminary point taken here by Mr Ngare State Counsel is that this suit is filed in the wrong court. He avers that this suit should have been filed at Malindi Environment and Land Court pursuant to Sec. 12 (d) of the Civil Procedure Act. He argues that, that section is couched in mandatory terms. He relied on the Mukisa Bisquite case in prosecuting his Preliminary Objection. He stated that LR. Number 10159 is in Kilifi Town in Kilifi County and the High Court which is nearest is Malindi. He urged the court to dismiss the suit and or transfer it to Malindi. He was supported in his arguments by the 1st, 2nd , 3rd and 5th defendant.
[2] Mrs Umaara learned counsel for the plaintiff argued that the defendants 1st and 2nd are adults who reside in Mombasa and that the 3rd defendant is a company whose registered office is in Mombasa. That the land Registry is in Mombasa. That filing the suit in Mombasa was convenient as all parties live in Mombasa and all witnesses will be in Mombasa. That Section 12 (d) should be read as a whole.
[3] I have carefully listened to the parities and have fully considered their submissions and arguments. I feel that striking the suit for filing the same in the wrong court is a harsh and draconian measure. This will not finally resolve the issues between the parties, it merely prolongs the dispute since the plaintiff is not prevented from filing a fresh suit subject to limitation of time.
I therefore order that this suit be transferred to the Malindi Environment and Land Court Registry. The same shall be placed before my brother Judge there for further directions, orders and final determination. The costs of this transfer and other incidentals shall be in the suit.
It is so ordered.
Dated and delivered in open court at Mombasa this 18th day of
September, 2014.
S. MUKUNYA
JUDGE
18. 9.2014
In the presence of:
Mr. Wangalwa advocate for A.B.Patel & Co. advocates
Ms. Lutta for 4th and 5th defendants