[2021] KEELC 574 (KLR)
The application for transfer of the suit from the subordinate court to the Environment and Land Court was dismissed because the applicant failed to provide sufficient evidence, such as a valuation report, to establish that the value of the suit property exceeded the pecuniary jurisdiction of the subordinate court....
Source-derived case information.
- Citation
- [2021] KEELC 574 (KLR)
- Parties
- Applicant: Leonida Omukhoya Shikuku; Respondent: Peter Andai Atira; Respondent: Rose Atema Ayubu Atira; Respondent: Rose Mulonda Opanda; Respondent: The Chair, Church Committee, Episcol Church of Africa; Respondent: The Chair, School Committee, Ebutenje Primary School; Respondent: Japheth Asirandai Opanda; Respondent: Joseph Opanda; Respondent: Jimmy Opanda Ambunya
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application E006 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit From Subordinate Court to Environment and Land Court
- Outcome
- application dismissed
- Judges
- DO Ohungo
- Legal Topics
- Jurisdiction of Subordinate Courts, Transfer of Suits, Valuation of Land, Environment and Land Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Leonida Omukhoya Shikuku
Applicant
Peter Andai Atira
Respondent
Rose Atema Ayubu Atira
Respondent
Rose Mulonda Opanda
Respondent
The Chair, Church Committee, Episcol Church of Africa
Respondent
The Chair, School Committee, Ebutenje Primary School
Respondent
Japheth Asirandai Opanda
Respondent
Joseph Opanda
Respondent
Jimmy Opanda Ambunya
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit From Subordinate Court to Environment and Land Court
Legal Issues
- 1 Whether the subordinate court has jurisdiction to hear and determine the land dispute in question.
- 2 Whether the value of the suit property exceeds the pecuniary jurisdiction of the subordinate court.
- 3 Whether sufficient material was placed before the court to justify transfer of the suit to the Environment and Land Court.
Ratio Decidendi
The application for transfer of the suit from the subordinate court to the Environment and Land Court was dismissed because the applicant failed to provide sufficient evidence, such as a valuation report, to establish that the value of the suit property exceeded the pecuniary jurisdiction of the subordinate court. The court held that it is the responsibility of the party asserting a fact to provide material evidence in support of that fact. Furthermore, the court found that subordinate courts have jurisdiction to hear and determine land and environment matters generally, and the mere assertion that the subject matter is land does not, without more, justify transfer. The applicant's...
Court Disposition
application dismissed
Orders
- Notice of Motion dated 28th October 2020 is dismissed.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAKAMEGA
ELC MISC. No. E006 OF 2020
LEONIDA OMUKHOYA SHIKUKU........................................................APPLICANT
VERSUS
PETER ANDAI ATIRA....................................................................1ST RESPONDENT
ROSE ATEMA AYUBU ATIRA..................................................... 2ND RESPONDENT
ROSE MULONDA OPANDA.........................................................3RD RESPONDENT
THE CHAIR, CHURCH COMMITTEE
EPISCOL CHURCH OF AFRICA.................................................4TH RESPONDENT
THE CHAIR SCHOOL COMMITTEE
EBUTENJE PRIMARY SCHOOL................................................5TH RESPONDENT
JAPHETH ASIRANDAI OPANDA...............................................6TH RESPONDENT
JOSEPH OPANDA......................................................................... 7TH RESPONDENT
JIMMY OPANDA AMBUNYA...................................................... 8TH RESPONDENT
RULING
1. By Notice of Motion dated 28th October 2020, the applicant herein seeks the following orders:
1. That KAKAMEGA CMC E.L.C NO.86 OF 2018 be transferred to High Court in Environment and land Court.
2. That the costs of this Application be provided for.
2. The application is supported by an affidavit sworn by the applicant. She deposed that the matter started at the High Court as Kakamega HCC No 74 of 2012 and was later transferred to the subordinate court. That the subordinate court lacks jurisdiction to hear and determine the matter and that at some point in the year 2019, the advocates for the 3rd, 4th and 5th respondents wrote to the court seeking transfer of the matter. Among the grounds listed on the face of the application are that the suit property is of an approximated value of over KShs 20,000,000 and that the subject matter in the suit is purely land.
3. The 3rd, 6th, 7th and 8th respondents responded to the application through a replying affidavit sworn by the 3rd respondent. She deposed that in the absence of a valuation report the issue of whether the suit property is valued at over KShs 20 million is one of conjecture. She added that the applicant is enjoying injunctive orders made by the subordinate court and that the application is aimed at frustrating the finalization of the suit. That the letter referred to by the applicant has no force of law.
4. The application was canvassed through written submissions. Save for the 3rd, 6th, 7th and 8th respondents, the rest of the respondents neither responded to the application nor filed submissions.
5. The applicant cited Section 13of theEnvironment and Land Court Act, 2011 and argued that this court has jurisdiction to call for the subordinate court’s file so as to peruse it and give directions. Further, the applicant argued that the suit property is about 22 acres and that some of the parties are public entities thereby making appropriate that the matter be handled by this court.
6. The 3rd, 6th, 7th and 8th respondents argued that in the absence of a valuation report to ascertain the value of the suit property, the claim that the suit property is valued at approximately over KShs 20,000,000 remains a mere allegation and that the application should be struck out or dismissed.
7. I have considered the application, the affidavits and the submissions. The applicant has not annexed a copy of the pleadings in the subordinate court case to enable this court ascertain the nature of the claim. The main reason why a transfer to this court is sought is that the suit property is of an approximated value of over KShs 20,000,000 and that the subject matter in the suit is purely land. As the respondent has pointed out, there is nothing placed before the court to ascertain the value. Even if I were to peruse the subordinate court’s file, it has not been shown how such a perusal will enable me determine the value. I must however restate that its always the duty of a party who wants to establish a certain fact to avail material to prove the fact. The applicant out to have availed a valuation report.
8. Pursuant to Section 26 (3)and(4) of the Environment and Land Court Act, 2011 as read with Section 9 (a)of theMagistrates’ Courts Act, 2015, subordinate courts have jurisdiction to hear and determine claims relating to environment and land generally. Thus, even the argument that the subject matter of the suit is purely land does not aid the applicant.
9. In view of the foregoing discourse, Notice of Motion dated 28th October 2020 is devoid of merit. I dismiss it. Considering that parties are still litigation the main dispute, I order that each party shall bear own costs.
DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 7TH DAY OF DECEMBER 2021.
D. O. OHUNGO
JUDGE
Delivered in open court in the presence of:
No appearance for the Applicant
No appearance for the 1st, 2nd, 4th to 8th Respondents
Ms Shimoli for the 3rd Respondent
Court Assistant: E. Juma