Kahia Transporters Limited & another v Chunky Limited & 8 others (Civil Appeal E011 of 2022) [2025] KECA 183 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that courts can decide where a case should be heard using sworn statements and submissions alone, without an oral hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the learned Judge failed to evaluate the facts and documents placed before the court, leading to a wrong determination in her ruling
- 2.whether the appellants were not afforded an opportunity to be heard, thereby effectively denying them a fair hearing and condemning them unheard
Key legal issues
#Whether the trial judge failed to evaluate the facts and documents before ruling on the transfer application
The appeal fails; the judge evaluated the record before granting the transfer on the basis of prima facie evidence that the land is in Kwale County.
The Court found the judge considered the application, the survey maps, satellite imaging, rates documents and submissions before finding prima facie evidence that the subject matter lies in Kwale County. Competing evidence (titles versus surveys) raised a question best determined at trial; the judge could not be faulted for preferring the survey evidence for jurisdictional purposes. Interference was not warranted under the settled principles in Mbogo v Shah.
Whether the appellants were denied a fair hearing and condemned unheard
No fair-hearing violation; jurisdiction may be decided on affidavit evidence and written submissions where no objection was raised and no oral hearing was sought.
Relying on Kibos Distillers, the Court held there is no automatic right to an oral hearing; procedural fairness requires only meaningful participation. The appellants filed a replying affidavit and submissions, were heard, and never applied for viva voce evidence after directions for disposal by submissions. Missing documents on the record did not itself establish condemnation unheard.
Inherent and statutory power to transfer cases between courts of concurrent jurisdiction
The ELC has inherent jurisdiction to transfer cases within its jurisdiction from one ELC station to another, guided by the convenience of parties and witnesses and Order 47 rule 6 of the Civil Procedure Rules.
Section 19(2) of the Environment and Land Courts Act binds the ELC to Civil Procedure Act procedure; sections 12 and 13 require suits over immovable property to be instituted where the property lies. The power to transfer, even absent express provision, rests on the court's unlimited and inherent jurisdiction and is discretionary, to be exercised judiciously.
Legal principles established
#- A trial court may determine a territorial-jurisdiction objection on affidavit evidence and submissions; disposing of such an application in that manner does not deny a party a fair hearing where no objection to the directions was raised and no application for viva voce evidence was made.
- An appellate court will not interfere with a discretionary decision of a judge on transfer of cases unless the judge misdirected himself in law, misapprehended the facts, took into account wrong considerations, failed to consider relevant considerations, or the decision is plainly wrong.
- The absence from the record of a document relied upon by a trial court does not of itself show that the opposing party was condemned unheard.
Court orders
#- 1.Appeal dismissed with costs to the 1st and 2nd respondents
- 2.The ruling and orders of the ELC at Mombasa (N. A. Matheka, J.) dated 19th January 2022 in Petition No. 9 of 2018 upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- ELC Petition No. 9 of 2018
- Jurisdiction invoked
- Section 19(2) of the Environment and Land Courts Act; appellate jurisdiction over ELC rulings (Constitution, Article 162(2)(b) framework)
Relief refused
#Setting aside of the ELC transfer orders and dismissal of the Notice of Motion dated 12th October 2021
The learned Judge addressed herself to the application, evaluated the record, and exercised discretion judiciously; no basis to interfere
Costs
Appeal dismissed with costs to the 1st and 2nd respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
we find that the appeal has no merit and is hereby dismissed with costs to the 1st and 2nd respondents
Consequently, the ruling and orders of the ELC at Mombasa (N. A. Matheka, J.) dated January 19, 2021 in Petition No. 9 of 2018 be and is hereby upheld
the trial court’s decision on the court’s jurisdiction in reliance on affidavit evidence, evidential documents, comprehensive submissions by counsel and statute law is by no means tantamount to denial of the appellants’ right to a fair hearing
the absence from the record of any particular document relied upon does not of itself suggest that a party in whose benefit the document(s) should have been availed was condemned unheard
As a general rule, there is no automatic right to an oral hearing. Procedural fairness does not require an oral hearing in all circumstances.
Issues in the judgment
#The judgment dates the impugned ruling inconsistently: the opening paragraph says 19th January 2022, but the final orders say January 19, 2021.
The authority cited by counsel is rendered inconsistently within the judgment as 'Owners of the Motor Vessel "Lillian"' in the submissions section but 'Owners of the Motor Vessel "Lillian S"' in the Stefano Uccelli quotation.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kahia Transporters Limited & another v Chunky Limited & 8 others (Civil Appeal E011 of 2022) [2025] KECA 183 (KLR)", Case Analysis (2025). Civil Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/183/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.