[2006] KEHC 456 (KLR)
The court found that, pursuant to Section 12 of the Civil Procedure Act, the proper forum for a suit concerning immovable property is the court within whose local jurisdiction the property is situated. Since the suit property is in Kilifi District, the Nairobi High Court lacks territorial jurisdiction. The court...
Source-derived case information.
- Citation
- [2006] KEHC 456 (KLR)
- Parties
- Plaintiff: Nicholas Kopo Kazungu; Defendant: Nawaz Mohamed Mirdor
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 851 of 2006
- Procedural Posture
- Civil Case / Ruling on Application for Substituted Service and Transfer of Suit
- Outcome
- Application for substituted service declined; suit ordered transferred to Malindi High Court.
- Judges
- JL Osiemo
- Legal Topics
- Adverse Possession, Jurisdiction of Court, Transfer of Suit, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas Kopo Kazungu
Plaintiff
Nawaz Mohamed Mirdor
Defendant
Procedural Posture
Civil Case / Ruling on Application for Substituted Service and Transfer of Suit
Legal Issues
- 1 Whether the High Court at Nairobi has jurisdiction to hear a suit concerning land situated in Kilifi District.
- 2 Whether leave should be granted for substituted service on the defendant whose whereabouts are unknown.
Ratio Decidendi
The court found that, pursuant to Section 12 of the Civil Procedure Act, the proper forum for a suit concerning immovable property is the court within whose local jurisdiction the property is situated. Since the suit property is in Kilifi District, the Nairobi High Court lacks territorial jurisdiction. The court therefore declined to grant the application for substituted service and, exercising its inherent powers under Section 3A of the Civil Procedure Act, ordered the transfer of the suit to the Malindi High Court, which has the requisite jurisdiction.
Court Disposition
Application for substituted service declined; suit ordered transferred to Malindi High Court.
Orders
- The Chamber Summons dated 22nd August 2006 is declined.
- The suit is withdrawn from the High Court at Nairobi and transferred to the High Court at Malindi.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
INTHE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 851 of 2006
NICHOLAS KOPO KAZUNGU…………………………………PLAINTIFF
VERSUS
NAWAZ MOHAMED MIRDOR………………….…………..DEFENDANT
RULING
The plaintiff brought this suit by way of Originating Summons for a declaration that he has secured proprietorship of the suit property being L.R. NO. KILIFI/MUTWAPA/206 by adverse possession claiming that he entered and took possession of the suit land in 1982 and has lived there openly, peacefully and without any interruption for a period over 12 years.
The claim is supported by an affidavit sworn by the plaintiff in which he avers that the suit property is registered in the name of NAWAZ MOHAMED MIRDOR who left the jurisdiction of this Honourable Court 20 years ago and his whereabouts is not known.
Efforts to serve the defendant were fruitless hence this application for leave to effect service by way of Substituted Service. Before I go into the merits and demerits of the application to effect service by way of Substituted Service, I note that the suit property is in Kilifi District within the local jurisdiction of Malindi High Court. Section 12 of the Civil Procedure Act requires that a suit shall be instituted where the subject matter is situate.
It provides as follows:-
“12” Subject to pecuniary or other limitations prescribed by any law suits –
(a) for the recovery of immovable property
(b) for the partition of immovable property shall be instituted in the court within the local limits of whose jurisdiction the property is situate”.
In the circumstances I decline to grant the prayers sought in the Chamber Summons dated 22nd August 2006 and invoke my inherent powers under Section 3A of the Civil Procedure Act and order that this suit be withdrawn from this court and be transferred to Malindi High Court which is the court within the local limits of whose jurisdiction the property is situate.
Those are the orders of this court.
Dated and delivered at Nairobi this 30th day of November 2006.
J.L.A. OSIEMO
JUDGE