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ELCOtherNot stated in judgment

Lamu Breeze Investment Limited & another v Charles Malakwen & 5 others [2014] KEELC 204 (KLR)

High Court of Kenya at Mombasa
18 September 2014
SMS. Mukunya
346 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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Filing a land case in the wrong Kenyan court is usually fixable — the judge moved it to Malindi rather than throwing it out.

What this practically means

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Executive summary

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This was a ruling on a preliminary objection raised by State Counsel Mr Ngare, supported by the 1st, 2nd, 3rd and 5th defendants, that the suit had been filed in the wrong court. It was contended that, under Section 12(d) of the Civil Procedure Act, which counsel submitted was couched in mandatory terms, a suit concerning land must be filed where the land is situate; since LR. Number 10159 is in Kilifi Town, Kilifi County, the suit should have been filed at Malindi. Counsel relied on the Mukisa Bisquite case and urged dismissal or transfer of the suit. Counsel for the plaintiff, Mrs Umaara, opposed the objection, arguing that the 1st and 2nd defendants are adults residing in Mombasa, the 3rd defendant is a company with its registered office in Mombasa, the land registry is in Mombasa, and that filing in Mombasa was convenient for all parties and witnesses; she urged that Section 12(d) be read as a whole. The court, per S. Mukunya J, held that striking out the suit for filing in the wrong court would be a harsh and draconian measure that would not finally resolve the issues between the parties, noting that the plaintiff would simply file afresh subject to limitation. The court accordingly ordered the transfer of the suit to the Malindi Environment and Land Court Registry, to be placed before the judge there for further directions, orders and final determination, with the costs of the transfer and incidentals to be costs in the suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the suit was filed in the wrong court, given that the suit property LR. Number 10159 is situate in Kilifi County and should have been filed at Malindi under Section 12(d) of the Civil Procedure Act
  2. 2.Whether the appropriate remedy is striking out the suit or transfer to the Malindi Environment and Land Court

Key legal issues

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01

Whether the suit should be dismissed or transferred for breach of the territorial jurisdiction rule in Section 12(d) of the Civil Procedure Act

Holding

The court declined to strike out the suit and instead transferred it to the Malindi Environment and Land Court Registry.

Reasoning

State Counsel for the defendants argued that Section 12(d) is mandatory and, since the suit land is in Kilifi Town, the nearest High Court is Malindi; he relied on the Mukisa Bisquite case. Counsel for the plaintiff countered that the defendants reside in Mombasa, the 3rd defendant's registered office is in Mombasa and the land registry is in Mombasa, making Mombasa convenient. The court held striking out would be harsh and draconian and would not finally resolve the issues, so transfer was the just course.

p. 2

Legal principles established

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  • A suit filed in the wrong court on the ground of territorial jurisdiction should ordinarily be transferred rather than struck out, since striking out is harsh and merely prolongs the dispute.

Court orders

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  1. 1.The suit is transferred to the Malindi Environment and Land Court Registry
  2. 2.The suit shall be placed before the Judge at Malindi for further directions, orders and final determination
  3. 3.The costs of the transfer and other incidentals shall be in the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SM
majority

Wrote the judgment

Jurisdiction invoked
Section 12(d) of the Civil Procedure Act (place of siting of suits where land is the subject matter)

Relief refused

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Dismissal of the suit for being filed in the wrong court

The court held that striking out the suit would be a harsh and draconian measure that would not finally resolve the dispute

p. 1

Costs

The costs of this transfer and other incidentals shall be in the suit.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I feel that striking 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.
p. 1Striking out versus transfer for wrong forum
I therefore order that this suit be transferred to the Malindi Environment and Land Court Registry. The same shall be placed before my brother Judge there for further directions, orders and final determination.
p. 2Final orders - transfer of suit

Issues in the judgment

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minor

Case number and full case title are not stated in the judgment copy provided

minor

The 4th and 5th defendants appear represented by counsel but their position on the preliminary objection is not expressly recorded; only the 1st, 2nd, 3rd and 5th defendants are said to have supported the objection

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Lamu Breeze Investment Limited & another v Charles Malakwen & 5 others [2014] KEELC 204 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/204/eng@2014-09-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.