Case Metadata |
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| Case Number: | ELC 78 of 2013 |
|---|---|
| Parties: | Lamu Breeze Investment Limited & another v Charles Malakwen & 5 others |
| Date Delivered: | 18 Sep 2014 |
| Case Class: | Civil |
| Court: | Environment and Land Court at Mombasa |
| Case Action: | Ruling |
| Judge(s): | Samwel Ndungu Mukunya |
| Citation: | Lamu Breeze Investment Limited & another v Charles Malakwen & 5 others [2014] eKLR |
| Advocates: | Mr. Wangalwa advocate for A.B.Patel & Co. advocates Ms. Lutta for 4th and 5th defendants |
| Court Division: | Land and Environment |
| Advocates: | Mr. Wangalwa advocate for A.B.Patel & Co. advocates Ms. Lutta for 4th and 5th defendants |
| History Advocates: | Both Parties Represented |
| Case Outcome: | Dismissed |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC. NO. 78 OF 2013
LAMU BREEZE INVESTMENT LIMITED
EQUATORIAL COMMERCIAL BANK LIMITED .................. PLAINTIFFS
- V E R S U S -
1. CHARLES MALAKWEN
2. LUCAS CHIMERA KENGA
3. DIM PROPERTIES LIMITED
4. THE SENIOR REGISTRAR OF TITLES
5. COUNTY GOVERNMENT OF KILIFI
6. THE HON. ATTORNEY GENERAL .................................. DEFENDANTS
RULING
[1] The Preliminary point taken here by Mr Ngare State Counsel is that this suit is filed in the wrong court. He avers that this suit should have been filed at Malindi Environment and Land Court pursuant to Sec. 12 (d) of the Civil Procedure Act. He argues that, that section is couched in mandatory terms. He relied on the Mukisa Bisquite case in prosecuting his Preliminary Objection. He stated that LR. Number 10159 is in Kilifi Town in Kilifi County and the High Court which is nearest is Malindi. He urged the court to dismiss the suit and or transfer it to Malindi. He was supported in his arguments by the 1st, 2nd , 3rd and 5th defendant.
[2] Mrs Umaara learned counsel for the plaintiff argued that the defendants 1st and 2nd are adults who reside in Mombasa and that the 3rd defendant is a company whose registered office is in Mombasa. That the land Registry is in Mombasa. That filing the suit in Mombasa was convenient as all parties live in Mombasa and all witnesses will be in Mombasa. That Section 12 (d) should be read as a whole.
[3] I have carefully listened to the parities and have fully considered their submissions and arguments. 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.
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. The costs of this transfer and other incidentals shall be in the suit.
It is so ordered.
Dated and delivered in open court at Mombasa this 18th day of
September, 2014.
S. MUKUNYA
JUDGE
18.9.2014
In the presence of:
Mr. Wangalwa advocate for A.B.Patel & Co. advocates
Ms. Lutta for 4th and 5th defendants
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