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ELCStruck OutMurang'a ELC suit filed 28th July 2014 (suit number not stated in judgment)· [2017] KEELC 3449 (KLR)

Patrick Muiruri Gichuka v Geoffrey Ngugi Njoroge & 2 others [2017] KEELC 3449 (KLR)

Environment and Land Court
10 March 2017
JKJ. G. Kemei
1,760 words in judgment
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The bottom line

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A Kenyan court struck out contempt proceedings because a consent order had already withdrawn the entire land suit, leaving no case to enforce.

What this practically means

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Executive summary

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This ELC Murang'a ruling determines a preliminary objection raised by the 1st and 2nd Respondents against the Plaintiff/Applicant's Notice of Motion dated 3rd February 2016, which sought to cite them for contempt of court for allegedly breaching a consent order adopted on 30th July 2014. The consent order cancelled the titles to parcels LOC6/Kandani/32 and LOC6/Kandani/38, reverting them to the deceased original owners (Muigua Kungu and Gachihi Kungu), maintained the status quo pending completion of a succession cause, and withdrew all civil and criminal matters relating to the two parcels. The 1st and 2nd Respondents argued that, the suit having been withdrawn by that consent order, the contempt application had no foundation and the court was functus officio, relying on Republic v Chief Magistrate Court Thika and Solomon Kiragu Thande v Simon Ngatunyi Chabi. The Applicant, relying on Justus Kariuki Mate v Martin Nyaga Wambora, contended the consent admitted the plaint's contents and that the key order was the maintenance of status quo. Applying the definition of a preliminary objection in Oraro v Mbaja, the binding effect of consent orders in Flora Wasike v Wamboko, and section 2 of the Civil Procedure Act, Kemei J held that no suit remained pending in which the contempt application could be filed, and that the consent order had contractual effect and had not been set aside. The preliminary objection was upheld, the Notice of Motion struck out, and each party ordered to bear their own costs.

Key legal issues

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01

Effect of the consent order withdrawing all civil and criminal matters on the competence of the contempt application

Holding

The consent order withdrew the suit; with no suit pending, the Notice of Motion dated 3rd February 2016 had no foundation and was struck out

Reasoning

Order (iii) of the consent order withdrew all matters civil or criminal relating to the suit parcels. The court construed 'suit' under section 2 of the Civil Procedure Act and held that the withdrawal order could only refer to the civil matter before it. The consent order had contractual effect, had not been set aside or challenged, and the court adopted the decisions cited by the respondents that the court was functus officio as to the withdrawn suit.

p. 3
02

Nature of a preliminary objection

Holding

Applying Oraro v Mbaja, the objection rested on the legal effect of the consent order and was properly a point of law

Reasoning

The court adopted the definition in Oraro v Mbaja that a preliminary objection is a point of law that must not be blurred with factual details liable to be contested. The objection here turned on the interpretation and legal effect of the consent order itself, which the applicant did not dispute was made, and so it disposed of the matter summarily without needing to investigate facts.

p. 3

Legal principles established

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  • A preliminary objection must be a pure point of law, not dependent on contested facts or evidence
  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract

Court orders

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  1. 1.The Preliminary Objection dated 9th March 2016 is upheld
  2. 2.The Notice of Motion dated the 3rd February 2016 is hereby struck out
  3. 3.Each party to meet their own costs

Authorities

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Legislation

  • Judicature Actsections 4 and 5
  • Civil Procedure Actsection 3A; section 2 (definition of 'suit')
  • Civil Procedure RulesOrder 40

Cases cited (5)

  • Oraro v Mbaja
    [2005] 1 KLR 141
  • Flora Wasike v Wamboko
    (1988) KLR 429
  • Republic v Chief Magistrate Court Thika & Others
    HCCC JR Misc No. 245 of 2015
  • Solomon Kiragu Thande v Simon Ngatunyi Chabi
    HCCC NBI No. 396 of 2004
  • Justus Kariuki Mate and Anor v Martin Nyaga Wambora & Anor
    CA No. 8 of 2014, Nyeri
Jurisdiction invoked
Original jurisdiction; application brought under sections 4 and 5 of the Judicature Act, Order 40 of the Civil Procedure Rules and section 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, "Patrick Muiruri Gichuka v Geoffrey Ngugi Njoroge & 2 others [2017] KEELC 3449 (KLR)", Case Analysis (2017). Murang'a ELC suit filed 28th July 2014 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3449/eng@2017-03-10

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