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ELCDismissedNot stated in judgment (ELC suit filed 18th September 2013)· [2017] KEELC 1180 (KLR)

Mary Nduta Kihiu & 3 others v Muungano Wa Wanavijiji & another [2017] KEELC 1180 (KLR)

Environment and Land Court
24 February 2017
2,441 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a trustee's bid for trust management orders, confirming the court only handles land disputes, not internal trust administration.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (L. Gacheru, J) determines a Notice of Motion dated 29th June 2015 by John Mbatia Waweru, a trustee of Mukuru Makao Bora Trust and an interested party in a land suit filed by the Plaintiffs on 18th September 2013 seeking, among other reliefs, transfer of LR. 7109/88 and 7109/89 Nairobi to the Trust. The applicant sought joinder as an interested party, orders compelling an Extra-Ordinary General Meeting of the Trust with a court-set agenda including appointment of an auditor and verification of the beneficiaries' list, retention of the title deed in the Defendant's custody, and police presence at the meeting. He alleged misappropriation of trust funds and tampering with the beneficiaries' list. The Plaintiffs opposed, arguing res judicata, incompetence and lack of merit, and noting that the Trust Deed recognised no 'EGM' and that the beneficiary list was already filed. The court held that prayer 1 was res judicata, having been decided in the ruling of 14th November 2014 which enjoined the applicant as an interested party. The remaining prayers concerned trust management, which fell outside the court's jurisdiction under Section 13 of the Environment and Land Court Act, the suit being over title to land, not trust administration. The Trust Deed provided its own mechanisms for meetings, audits and inspection of accounts, and there was no evidence the applicant had exhausted them. The application was held to be an abuse of process, stifling expeditious disposal of the suit contrary to the overriding objective in sections 1A and 3A of the Civil Procedure Act. The motion was dismissed entirely with costs to the Plaintiffs/Respondents, and the Defendant and interested parties were directed to comply with Order 11 within 30 days, with mention on 28th March 2017 for pre-trial conference.

Key legal issues

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01

Res judicata on joinder as interested party

Holding

Prayer 1 was res judicata as the court had on 14th November 2014 already enjoined the applicant as an interested party

Reasoning

The court noted that on 16th April 2014 the applicant and four others sought joinder as Defendants; the ruling of 14th November 2014 declined to add them as Defendants but enjoined all five as interested parties. Prayer 1 of the present motion sought the same relief and was therefore already a decided matter.

p. 3
02

Jurisdiction over trust management orders

Holding

The ELC has no jurisdiction to grant orders relating to the management of the Trust; the suit concerns title to land

Reasoning

Section 13 of the Environment and Land Court Act confines the court to environment and land disputes. The prayers sought - an EGM, audit, beneficiary verification and custody of the title deed - concern the internal management of Mukuru Makao Bora Trust under its Trust Deed, which does not fall within that jurisdiction. Such orders were therefore beyond the court's powers.

p. 4
03

Abuse of court process and the overriding objective

Holding

The application was an abuse of process, stifling expeditious disposal of the suit contrary to sections 1A and 3A of the Civil Procedure Act

Reasoning

The court held that by filing numerous unnecessary applications instead of complying with Order 11 directions for pre-trial, the applicant, himself a trustee, was stifling the expeditious disposal of the suit. The overriding objective requires just, expeditious, proportionate and affordable resolution of disputes, and the court should not allow any party to abuse court process.

p. 4

Legal principles established

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  • The Environment and Land Court's jurisdiction is confined to environment and land disputes under Section 13 of the ELC Act and does not extend to orders on the internal management of a trust
  • A party cannot relitigate a matter already decided; such applications are res judicata

Court orders

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  1. 1.The Notice of Motion dated 29th June 2015 by the Interested Party John Mbatia Waweru is dismissed entirely with costs to the Plaintiffs/Respondents to be borne by the applicant
  2. 2.The Defendant and the interested parties to comply with Order 11 of the Civil Procedure Rules within 30 days from the date of the Ruling, failing which the sanctions in the ELC Practice Directions will apply
  3. 3.Matter to be mentioned on 28th March 2017 before any ELC Judge to confirm compliance and for pre-trial conference

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 3A
  • Civil Procedure RulesOrder 11
  • Environment and Land Court Actsection 13
  • Constitution of KenyaArticle 162(2)(b)
  • Trust Deed of Mukuru Makao Bora Trustclauses 2, 11, 23, 26
Jurisdiction invoked
Section 13 of the Environment and Land Court Act; Article 162(2)(b) of the Constitution; sections 1A and 3A of the Civil Procedure Act

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, "Mary Nduta Kihiu & 3 others v Muungano Wa Wanavijiji & another [2017] KEELC 1180 (KLR)", Case Analysis (2017). Not stated in judgment (ELC suit filed 18th September 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1180/eng@2017-02-24

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