[2008] KEHC 1165 (KLR)
The court held that, as the land in dispute is located in Nyandarua District, the proper forum for hearing the suit is the Nakuru High Court, not the Nyeri High Court. This is mandated by Section 12 of the Civil Procedure Act and Order XLVI of the Civil Procedure Rules, which require that suits concerning immovable...
Source-derived case information.
- Citation
- [2008] KEHC 1165 (KLR)
- Parties
- Plaintiff: Lilian Wambui Njoroge & 5 Others; Defendant: John Njuguna Njoroge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 605 of 2003
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Transfer Order
- Outcome
- Application to set aside transfer order allowed; suit to be transferred to Nakuru High Court.
- Judges
- JL Osiemo
- Legal Topics
- Jurisdiction of Court, Transfer of Suit, Family Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lilian Wambui Njoroge & 5 Others
Plaintiff
John Njuguna Njoroge
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Transfer Order
Legal Issues
- 1 Whether the suit should be heard in Nyeri High Court or Nakuru High Court based on the location of the property.
- 2 Whether the previous order transferring the suit to Nyeri High Court was proper under the Civil Procedure Act and Rules.
Ratio Decidendi
The court held that, as the land in dispute is located in Nyandarua District, the proper forum for hearing the suit is the Nakuru High Court, not the Nyeri High Court. This is mandated by Section 12 of the Civil Procedure Act and Order XLVI of the Civil Procedure Rules, which require that suits concerning immovable property be instituted in the court within the local limits of whose jurisdiction the property is situated. The court also relied on Legal Notice Number 300 of 19th January 2007, which directs strict compliance with these jurisdictional provisions. Consequently, the previous order transferring the suit to Nyeri High Court was set aside and replaced with an order transferring...
Court Disposition
Application to set aside transfer order allowed; suit to be transferred to Nakuru High Court.
Orders
- The order dated 19th June 2008 transferring the suit to Nyeri High Court is set aside.
- The suit is to be transferred to Nakuru High Court for hearing and determination.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 605 of 2003
LILIAN WAMBUI NJOROGE & 5 OTHERS……......………….PLAINTIFFS
VERSUS
JOHN NJUGUNA NJOROGE…………………………………DEFENDANT
R U L I N G
This claim arises out of a dispute over family land between the mother and her 5 sons against the Defendant another son. The land is situate at South Kinangop Nyandarua District of the Central Province.
On 19th June 2008 I made an order that the suit be transferred to Nyeri High Court for hearing and determination. But Mr. Njoroge on 27th June 2008 filed a notice of motion under certificate of urgency seeking orders that the said order transferring the suit to Nyeri High Court be set aside. This being a dispute over land, it falls squarely within the provisions of Section 12 of the Civil Procedure Act Cap. 21 Laws of Kenya which provides:
“12” Subject to the pecuniary or other limitations prescribed by any law, suits –
(a) for recovery of immovable property, with or without rent or profits;
(b) for the partition of immovable property;
(c) for the foreclosure, sale redemption in the case of a mortgage of a charge upon immovable property;
(d) for the determination of any other right to or interest in immovable property;
(e) for compensation for wrong for immovable property;
(f) for the recovery of immovable property actually under distrain or attachment.
Where the property is situate in Kenya, shall be instituted in the court within the local limits of whose jurisdiction the property is situate.”
Further the provisions of Order XLVI of the Civil Procedure Rules are very clear Nyandarua District falls under Nakuru High Court. I also refer to Legal Notice Number 300 of 19th January 2007 whereby all High Court stations are directed to observe the provisions of Order XLVI of the Civil Procedure Rules with regard to the filing of and hearing of suits in the High Court Central Registry and in the District Registries and ensure their compliance and enforcement.
For the above stated reasons the Applicants’ notice of motion dated 26th June 2008 succeeds and this court’s order dated 19th June 2008 transferring the suit to Nyeri High Court is set aside and substituted with an order that the suit be transferred to Nakuru High Court for hearing and determination.
Dated and delivered at Nairobi this 8th day of July 2008.
J. L. A. OSIEMO
JUDGE