James Oloolkeyai ole Seriani v Ole Nkoliai, Stephen Nkoliai, David Nkoliai, Ndege Kipos & David Mpilel [2019] KEELC 4479 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAROK

ELC CAUSE NO. 497 OF 2017

FORMERLY KISII ELC NO. 190 OF 2016

JAMES OLOOLKEYAI OLE SERIANI……...…………………PLAINTIFF

-VERSUS-

OLE NKOLIAI …….…………………………………………1ST DEFENDANT

STEPHEN NKOLIAI……..………………………………….2ND DEFENDANT

DAVID NKOLIAI…….………………………………………3RD DEFENDANT

NDEGE KIPOS……………...………………………………..4TH DEFENDANT

DAVID MPILEL……….…….……………………………….5TH DEFENDANT

RULING

The Defendants had by an Application dated 8th November, 2018 but filed in court on 4th February, 2019 and brought under Section 1A,1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules sought the suit herein be transferred to the Kilgoris Principal Magistrate’s Court for hearing and determination.  The Application was based on the grounds that the suit relates to Land Parcel TRANS MARA/OLOMISMIS/972 which is located within the jurisdiction of the aforesaid court and further that the parties are residents of Kilgoris and transferring the suit will be convenient to them in terms of costs.  The Application was further supported by the affidavit of R.V. Mukoya advocate.

When the Application came up before me for hearing Mr. Mukoya Advocate submitted that he will rely on the contents of the Application and will not make any submissions. Mr. Ochwangi counsel for the Respondent equally stated that he will make oral submission on points of law.

I have considered the Application before me and the submissions made by counsel.   It is not in dispute that the suit land falls within the jurisdiction of Kilgoris Principal Magistrate’s Court neither have the Respondents demonstrated to me the lack of such other jurisdiction whether pecuniary or otherwise by Kilgoris Principal Magistrate’s Court to hear and determine the suit herein and in the circumstance I find that the Application is merited and I order that the suit herein be transferred to Kilgoris Principal Magistrate’s Court for hearing and determination.

I further order each party shall bear its costs.

DATED, SIGNED and DELIVERED in open court atNAROKon this27thday ofFEBRUARY, 2019

Mohammed Noor Kullow

Judge

27/2/19

In the presence of:

CA: Kimiriny

Mr Langat holding brief for Ogutu for the Plaintiff/Respondent

Mr Mukoya for the Defendant/Applicant

Mohammed Noor Kullow

Judge

27/2/19