[2022] KEELC 15729 (KLR)
The court determined that while the Environment and Land Court has jurisdiction over land matters, territorial jurisdiction is a mandatory consideration. Since the subject property is located in Ruiru, the proper forum is the Thika Environment and Land Court. However, striking out the suit would be unnecessarily...
Source-derived case information.
- Citation
- [2022] KEELC 15729 (KLR)
- Parties
- Plaintiff: Zachariah Ongera Mongare; Defendant: National Bank of Kenya Ltd; Defendant: Betty C. Wanjiru Murage
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E107 of 2021
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Territorial Jurisdiction
- Outcome
- suit transferred to proper court
- Judges
- JA Mogeni
- Legal Topics
- Territorial Jurisdiction, Transfer of Suit, Environment and Land Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zachariah Ongera Mongare
Plaintiff
National Bank of Kenya Ltd
Defendant
Betty C. Wanjiru Murage
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Territorial Jurisdiction
Legal Issues
- 1 Whether the Environment and Land Court at Nairobi has territorial jurisdiction to hear the suit concerning land situated in Ruiru.
- 2 Whether the suit should be struck out or transferred to the appropriate court.
Ratio Decidendi
The court determined that while the Environment and Land Court has jurisdiction over land matters, territorial jurisdiction is a mandatory consideration. Since the subject property is located in Ruiru, the proper forum is the Thika Environment and Land Court. However, striking out the suit would be unnecessarily harsh and would not resolve the substantive dispute between the parties. Therefore, the appropriate remedy is to transfer the suit to the Thika Environment and Land Court for hearing and determination, rather than dismissing it outright.
Court Disposition
suit transferred to proper court
Orders
- The suit is transferred to the Thika Environment and Land Court Registry.
- The matter shall be placed before the Presiding Judge at Thika for further directions, orders, and final determination.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ENVIRONMENT AND LAND COURT AT NAIROBI
ELC CASE NO. E107 OF 2021
ZACHARIAH ONGERA MONGARE...................................................PLAINTIFF
VERSUS
NATIONAL BANK OF KENYA LTD.........................................1ST DEFENDANT
BETTY C. WANJIRU MURAGE...............................................2ND DEFENDANT
RULING
The Preliminary objection raised by Counsel for the 1st defendant is that this suit is filed in the wrong court. He avers that this suit should have been filed at Thika Environment and Land Court pursuant to Sec. 12 of the Civil Procedure Act. He argues that, in view of this section then the court lacks jurisdiction to hear the matter in Milimani Nairobi. He relied on the Mukisa Bisquite case in prosecuting his Preliminary Objection. He stated that LR. Number Ruiru/Ruiru East Bloc3/929 is in Ruiru and therefore this Honorable court lacks the territorial jurisdiction to hear the case in Nairobi. He urged the court in his Preliminary Objection to dismiss the suit he never gave the option of having the suit transferred to Thika though he mentions the transfer to the Thika in his submission.
Mr Fredrick Ondigo learned counsel for the plaintiff argued that the 1st defendant is a company whose registered office is in Nairobi. He argues that section 13 of the Environment and Land Act has given this court original and appellate jurisdiction.
I have carefully considered the pleadings of the parties and have fully considered their submissions and arguments. I feel that striking out 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 Thika Environment and Land Court Registry. The same shall be placed before the Presiding 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 VIRTUALLY AT NAIROBI THIS 24TH DAY OF JANUARY 2022
………………………………………
MOGENI J
JUDGE
IN THE PRESENCE OF
……………………………FOR PLAINTIFF
…………………………….FOR 1ST DEFENDANT
…………………………….FOR 2ND DEFENDANT