[2021] KEELC 3474 (KLR)
The court found that the applicant's valuation of the property at Kshs.24,000,000 was grossly exaggerated and not credible, particularly given the prevailing market rates for land in Ruai. The court held that the value of the subject property did not exceed the monetary jurisdiction of the Chief Magistrate's Court....
Source-derived case information.
- Citation
- [2021] KEELC 3474 (KLR)
- Parties
- Applicant: Teresa Njeri Kinyari; Respondent: Justus Nguku Githaiga; Respondent: Leah Gathoni Kinyari; Respondent: Moses Kariuki Mundia; Respondent: Samuel Kinyanjui Ngugi; Respondent: Catherine Wanjiku Kimani; Respondent: Fresha Wanjiru Kagera; Respondent: Dorcas Mwen Kiliku; Respondent: Salome Wairimu Njoroge; Respondent: Ruth Njeri; Respondent: Mary Nyokabi Njoroge; Respondent: Nairobi City County
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 107 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Suit From Chief Magistrate's Court to Environment and Land Court
- Outcome
- application dismissed with costs to the 1st, 4th, 5th, 6th, 7th, 8th and 10th respondents
- Legal Topics
- Jurisdiction of Courts, Valuation of Land, Transfer of Suit, Physical Planning Act, Sale of Land, Procedure for Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresa Njeri Kinyari
Applicant
Justus Nguku Githaiga
Respondent
Leah Gathoni Kinyari
Respondent
Moses Kariuki Mundia
Respondent
Samuel Kinyanjui Ngugi
Respondent
Catherine Wanjiku Kimani
Respondent
Fresha Wanjiru Kagera
Respondent
Dorcas Mwen Kiliku
Respondent
Salome Wairimu Njoroge
Respondent
Ruth Njeri
Respondent
Mary Nyokabi Njoroge
Respondent
Nairobi City County
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Suit From Chief Magistrate's Court to Environment and Land Court
Legal Issues
- 1 Whether the Chief Magistrate's Court lacks jurisdiction due to the value of the subject property exceeding its monetary limit.
- 2 Whether the existence of issues under the (now repealed) Physical Planning Act necessitates transfer to the Environment and Land Court.
- 3 Whether the valuation presented by the applicant is credible and sufficient to warrant transfer of the suit.
Ratio Decidendi
The court found that the applicant's valuation of the property at Kshs.24,000,000 was grossly exaggerated and not credible, particularly given the prevailing market rates for land in Ruai. The court held that the value of the subject property did not exceed the monetary jurisdiction of the Chief Magistrate's Court. Furthermore, the court determined that the applicant had not followed the prescribed procedure under the repealed Physical Planning Act for addressing grievances, and thus could not rely on that Act as a basis for transferring the suit. The application to transfer the suit was therefore found to be without merit and was dismissed with costs to specified respondents.
Court Disposition
application dismissed with costs to the 1st, 4th, 5th, 6th, 7th, 8th and 10th respondents
Orders
- The application to transfer the suit from the Chief Magistrate's Court to the Environment and Land Court is dismissed.
- Costs awarded to the 1st, 4th, 5th, 6th, 7th, 8th and 10th respondents.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MILIMANI
ELC MISC NO. 107 OF 2019
TERESA NJERI KINYARI....................................APPLICANT
VERSUS
JUSTUS NGUKU GITHAIGA...................1ST RESPONDENT
LEAH GATHONI KINYARI.....................2ND RESPONDENT
MOSES KARIUKI MUNDIA......................3D RESPONDENT
SAMUEL KINYANJUI NGUGI................4TH RESPONDENT
CATHERINE WANJIKU KIMANI..........5TH RESPONDENT
FRESHA WANJIRU KAGERA................6TH RESPONDENT
DORCAS MWENI KILIKU.....................7TH RESPONDENT
SALOME WAIRIMU NJOROGE............8TH RESPONDENT
RUTH NJERI.............................................9TH RESPONDENT
MARY NYOKABI NJOROGE...............10TH RESPONDENT
NAIROBI CITY COUNTY......................11TH RESPONDENT
RULING
1. The Applicant herein Teresa Njeri Kinyari had been sued together with her mother Leah Gathoni Kinyari in Milimani Chief Magistrate’s Court Civil Case No. 10304 of 2018. The Applicant filed a counter-claim in the suit in which she named the Plaintiff in the suit as 1st Defendant among other Defendants.
2. The Applicant filed the present application seeking to transfer the suit at the Chief Magistrates Court on grounds that the combined value of the plots the nine Defendants are claiming is about 24,000,000/= which is above the monetary jurisdiction of the Chief Magistrates Court. The Applicant also contends that there is an issue touching on the Physical Planning Act (Now repealed) which can only be handled by this Court.
3. The Applicant argues that she engaged the services of a valuer who valued the land and improvements which came to Kshs.24,000,000/=. The Applicant is the registered owner of LR No. Nairobi/Block 126/1442 which measures one acre. The Applicant had settled her parents and brother on that land sometime in 2005. The mother then sold plots measuring 40x 80 to the Defendants/Respondents who proceeded to construct and settle on it. The Applicant now claims that her mother did not have authority to sell the land.
4. The Applicant’s application has been opposed by some of the Respondents on the ground that the valuation has been grossly exaggerated and that under the Physical Planning Act (Now repealed), there was a procedure which ought to have been followed by any person who felt aggrieved that no development permission had been given. As that procedure was not followed, the Applicant cannot use the Act to obtain a transfer of the case from the Chief Magistrate’s Court to this Court.
5. The Respondents contend that the Applicant is out to delay this case and that in any case the Respondents purchased their individual plots and that the value of a one-acre parcel in Ruai cannot fetch 20,000,000/=.
6. I have considered the Applicant’s application as well as the opposition to the same. I have also considered the submissions filed. Any issue which touched on the Physical Planning Act (Now repealed) had a manner in which the complaints therein were to be handled. Any aggrieved person was expected to appeal against any decision to the Liaison Committee or escalate it to other committees before moving to the High Court by way of appeal. There is no evidence that the procedure was followed.
7. The Applicant has sued defendants who individually purchased land from her mother. Each purchaser has an individual sale agreement. She is pursuing each individual who has a portion in the property she is claiming. Though there is a valuation report which has valued the property together with developments at Kshs.24,000,000/= I doubt whether an acre in Ruai is worthy 20,000,000/= as the valuer claims . The court cannot take an expert’s view as the gospel truth. This valuation is grossly exaggerated.
8. The structures in the property have been valued at Kshs.4,000,000/= making total value of Kshs.24,000,000/=. It is clear that the valuation is exaggerated with a view to obtaining a transfer. I find no merit in this application which is hereby dismissed with costs to the 1st, 4th, 5th, 6th , 7th , 8th and 10th Respondents.
It is so ordered.
Dated, Signed and Delivered at Nairobi on this 4th day of February 2021.
E.O.OBAGA
JUDGE
In the Virtual presence of:-
M/s Wanyama for Mr Wati for Applicant
Mr Maramba for M/s makori for 2nd Respondent
Mr Angaya for 1st , 4th to 8th and 10th Respondents
Mr Nyauchi for 11th Respondent
Court Assistant: Hilda
E.O.OBAGA
JUDGE