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ELCDismissedMiscellaneous Application dated 13th January 2017· [2017] KEELC 3775 (KLR)

Wambui Gikwa v Paul Kimani Muraba [2017] KEELC 3775 (KLR)

Environment and Land Court
13 June 2017
COChristine Ochieng
1,237 words in judgment
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The bottom line

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A Kenyan landowner lost her eviction bid because she filed it as a miscellaneous application instead of a proper suit, paying the respondent's costs.

What this practically means

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Executive summary

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Wambui Gikwa, the registered proprietor of LR Ngong/Ngong/6138, applied by notice of motion dated 13 January 2017, under sections 3 and 3A of the Civil Procedure Act, for eviction orders against Paul Kimani Muraba and his agents, and for the OCS, OCPD and County Commissioner Ngong to enforce compliance. She relied on the Court of Appeal's dismissal, on 2 December 2016, of the respondent's adverse possession claim (appeal no. 161 of 2013), which had overturned a High Court judgment in his favour in HCCC No. 223 of 2008. The respondent opposed, filing a replying affidavit and a preliminary objection, contending that the application was incompetent for lacking a substantive suit, an abuse of process, time barred under the Limitation of Actions Act, and that the court lacked jurisdiction to enforce a Court of Appeal judgment. He asserted occupation since 1982, permanent developments and family burials on the land. The applicant's counsel argued she was merely executing the Court of Appeal judgment. The court, addressing whether the application was properly before it, held that suits must be instituted under section 19 of the Civil Procedure Act and Order 3 Rule 1(1) by plaint, and eviction claims must comply with sections 152(A) to 152(H) of the Land Act. As the application was a miscellaneous application with no plaint, and the applicant had not disclosed the status of her earlier eviction suit, Nairobi HC ELC No. 713 of 2011, the court found it unmerited, bad in law, misconceived and an abuse of process, dismissed the miscellaneous cause and awarded costs to the respondent.

Key legal issues

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01

Whether the eviction application, filed as a miscellaneous application without a plaint, was properly before the court

Holding

The application was improperly instituted; eviction orders could not issue on a miscellaneous application without a plaint

Reasoning

Section 19 of the Civil Procedure Act requires suits to be instituted as prescribed by the rules, and Order 3 Rule 1(1) requires institution by plaint. Eviction actions must also follow sections 152(A)-152(H) of the Land Act. The application was a miscellaneous application with no plaint. The applicant also had a pending suit (Nairobi HC ELC No. 713 of 2011) seeking eviction whose status she did not disclose. The application was therefore bad in law, misconceived and an abuse of process.

p. 3

Legal principles established

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  • Every suit must be instituted in the manner prescribed by the Civil Procedure Rules; an action for eviction must comply with sections 152(A) to 152(H) of the Land Act

Court orders

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  1. 1.Eviction orders declined
  2. 2.The miscellaneous cause dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A, 19
  • Civil Procedure RulesOrder 3 Rule 1(1), Section 2
  • Limitation of Actions Actgeneral
  • Land ActSections 152(A) to 152(H)
Jurisdiction invoked
Sections 3 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, "Wambui Gikwa v Paul Kimani Muraba [2017] KEELC 3775 (KLR)", Case Analysis (2017). Miscellaneous Application dated 13th January 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3775/eng@2017-06-13

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