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ELCDismissedNotice of Motion dated 19th January 2017 (in a Petition, Environment and Land Court, Machakos)· [2017] KEELC 880 (KLR)

Kamene Kaleve & another v Peter Musyoki Kathama & 3 others [2017] KEELC 880 (KLR)

Environment and Land Court
23 November 2017
OAO.A. Angote
1,129 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Machakos dismissed a land dispute petition, ruling that claims like res judicata and injunctions must be raised in the existing Kitui suit, not a new petition.

What this practically means

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Executive summary

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The Petitioners, through a Notice of Motion dated 19th January 2017, sought transfer of Kitui Chief Magistrate's Court Civil Case No. 336 of 2014 to the Environment and Land Court, together with conservatory orders and an interim injunction restraining the Respondents from entering, occupying, trespassing on or constructing on land parcel Mutonguni/Kauwi/750, and an order for police protection. The Petition also sought declarations that parcel 758 does not exist, that the Kitui suit is res judicata, and that the Respondents violated the Petitioners' rights to privacy and property. The 1st Petitioner, administrator of her late husband's estate, deponed that her husband purchased 1.5 acres from the 1st Respondent in 1983, lost prior suits over that portion, and that the current Kitui suit is res judicata. The 1st Respondent maintained he had leased, not sold, the portion, that the High Court annulled the agreement, and that the Kitui suit sought to enforce that judgment. The court held that no basis was laid for transfer of the file, noting that the Kitui Chief Magistrate's court is gazetted to hear land disputes within its pecuniary jurisdiction, a position attributed to the Court of Appeal. It further held that all issues raised in the Petition, including res judicata and entitlement to an injunction, should be litigated in the pending Kitui suit rather than by an independent Petition. The Petition and application were found to constitute an abuse of court process and were dismissed with costs.

Key legal issues

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01

Whether the filing of the Petition and Notice of Motion amounted to an abuse of court process

Holding

Yes. All matters raised, including res judicata and entitlement to an injunction, should be litigated in Kitui CMCC No. 336 of 2014 rather than by an independent Petition.

Reasoning

The court found that the Petitioners conceded the pending suit should not have been filed and that their complaints, including the res judicata claim and injunction, properly belong in the pending suit. With no basis laid for transfer and the magistrates' court gazetted to hear land disputes, the parallel Petition was an abuse of process and was dismissed with costs.

p. 3

Legal principles established

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  • Where a subordinate court is gazetted to hear land disputes within its pecuniary jurisdiction, there must be a basis laid before its file is transferred to the Environment and Land Court.

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 19th January 2017 with costs

Authorities

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Legislation

  • Environment and Land Court ActSection 26(3)

Cases cited (1)

  • Law Society of Kenya, Nairobi Branch vs. Malindi Law Society & others
    (2017) eKLR
Jurisdiction invoked
Environment and Land Court Act (including Section 26(3) on gazetted magistrates) and the constitutional petition jurisdiction invoked in the Petition

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, "Kamene Kaleve & another v Peter Musyoki Kathama & 3 others [2017] KEELC 880 (KLR)", Case Analysis (2017). Notice of Motion dated 19th January 2017 (in a Petition, Environment and Land Court, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/880/eng@2017-11-23

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