Kenya Medical Association Housing Cooperative Society Limited v Arthi Highway Developers Ltd & another [2018] KEELC 1060 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it can decide how much indemnity is owed under Section 83 of the Land Registration Act, dismissing attempts to block such claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the Environment and Land Court has jurisdiction over the plaintiff's money claim for indemnity
The court has jurisdiction because the claim arises under Section 83 of the Land Registration Act, which defines the competent court as the Environment and Land Court.
The plaintiff's claim is not a bare money claim: it seeks indemnity pursuant to a judgment in Nairobi ELC 167 of 2007, where Justice Nyamweya found the plaintiff entitled to indemnity from the two defendants. Section 83 of the Land Registration Act governs recovery of indemnity funds, and the Act defines 'court' as the Environment and Land Court established under the Environment and Land Court Act 2011. The suit therefore falls squarely within the court's jurisdiction.
Whether the suit is an abuse of the process of the court
The suit is not an abuse of process; the plaintiff is properly pursuing indemnity to which it was found entitled, and an appeal against that judgment was dismissed.
Adopting the definition in Bullen, Leake and Jacob's Precedents of Pleadings, the court reasoned that abuse of process involves misuse of the court's machinery for vexation or oppression. Here the plaintiff pursues indemnity already granted by Justice Nyamweya and affirmed on appeal by the Court of Appeal. The claim is therefore honest, in good faith, and a legitimate continuation of the earlier suit; the preliminary objection is baseless.
Legal principles established
#- The Environment and Land Court has jurisdiction over claims for indemnity under Section 83 of the Land Registration Act, since the Act defines 'court' as the Environment and Land Court established under the Environment and Land Court Act 2011.
- A party found entitled to indemnity by a court judgment is properly pursuing that indemnity, and such a suit is not an abuse of the process of the court.
Court orders
#- 1.The preliminary objection by the first defendant is overruled with costs to the plaintiff
- Jurisdiction invoked
- Environment and Land Court Act, 2011; Land Registration Act (definition of 'court' and Section 83 indemnity provisions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Medical Association Housing Cooperative Society Limited v Arthi Highway Developers Ltd & another [2018] KEELC 1060 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1060/eng@2018-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.