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ELCDismissedMisc Application No 144 of 2017· [2018] KEELC 1723 (KLR)

Republic v Benjamin Maora & 7 others [2018] KEELC 1723 (KLR)

Environment and Land Court
27 September 2018
COChristine Ochieng
699 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to throw out a land dispute case over a paperwork flaw, ruling that substance matters more than technicalities.

What this practically means

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Executive summary

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This judgment of the Environment and Land Court, delivered by Christine Ochieng, J, on 27th September 2018, determines the 1st Respondent's Notice of Preliminary Objection dated 9th February 2012 against the Applicants' application dated 18th November 2011, which sought leave to institute judicial review proceedings - an order of prohibition and certiorari - against the decision of the Senior Resident Magistrate in Land Dispute Tribunal Case No 99 of 2011 arising from Kajiado Central Land Dispute Tribunal Case Number 661/07. The 1st Respondent sought dismissal of the suit in limine with costs, contending the application was defective, incompetent, frivolous, vexatious, an abuse of process and bad in law because the Applicants lacked locus standi, and that the court lacked jurisdiction unless sitting as a Probate and Administration Court. He relied on, among others, Mukisa Biscuit Manufacturing Co Ltd v Westend Distributors Ltd and Farmers Bus Service v Transport Licensing Appeals Tribunal. The court framed two issues: whether it lacked jurisdiction over probate and administration matters, and whether the suit was incompetent and should be dismissed. Holding that the defect in the pleading was curable by amendment and that the 1st Respondent was himself relying on technicalities, the court invoked Article 159(2)(d) of the Constitution and section 19(1) of the Environment and Land Court Act, and followed Republic v District Land Registrar, Uasin Gishu. The preliminary objection was declined; the leave application was directed to be set down for hearing within 21 days, with costs in the cause.

Key legal issues

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01

Whether the court lacks jurisdiction over probate and administration issues

Holding

The preliminary objection on jurisdiction failed because the defect in the pleading was curable by amendment and the overriding objective required the matter be heard on merit.

Reasoning

The court noted the application sought leave for prohibition and certiorari against a Senior Resident Magistrate's decision in a Land Dispute Tribunal case. Though there was a defect in the pleading, it was curable by amendment. Section 19(1) of the Environment and Land Court Act and Article 159(2)(d) of the Constitution required the court to act without undue regard to technicalities. The court found it was the 1st Respondent who relied on technicalities to defeat the application.

p. 2
02

Whether the suit is incompetent, bad in law and should be dismissed

Holding

The suit was not dismissed; the preliminary objection was declined and the leave application was directed to be heard on merit within 21 days.

Reasoning

Relying on Republic v District Land Registrar, Uasin Gishu, the court held that justice is not dependent on technical rules of procedure. Pursuant to Article 159(2)(d) and section 19(1) of the Environment and Land Court Act, the curable defect did not warrant dismissal in limine, and the application for leave to institute judicial review proceedings should proceed to full hearing.

p. 2

Legal principles established

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  • Courts must administer justice without undue regard to procedural technicalities under Article 159(2)(d) of the Constitution and section 19(1) of the Environment and Land Court Act.

Court orders

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  1. 1.The Preliminary Objection dated 9th February 2012 is disallowed.
  2. 2.The application seeking leave to institute judicial review proceedings be set down for hearing within 21 days from the date of the order.
  3. 3.Costs will be in the cause.

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 rule 1 and 2
  • Environment and Land Court Actsection 19(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure Actnot specified

Cases cited (5)

  • Farmers Bus Service Vs Transport Licensing Appeals Tribunal
    (1959) EA 779
  • Jotham Mulati Welamondi Vs the Chairman ECK & Others
    (2002) KLR
  • The Tribunal on inquiry to investigate the Conduct of Puisne Judge Tom Mbaluto Ex parte Tom Mbaluto
    (UR) 2009
  • Mukisa Biscuit Manufacturing Co. Ltd Vs Westend Distributors Ltd
    (1969) EA Pp 696 - 701
  • Republic Vs. District Land Registrar, Uasin Gishu & Anor
    (2014) eKLR
Jurisdiction invoked
Environment and Land Court Act, section 19(1)

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, "Republic v Benjamin Maora & 7 others [2018] KEELC 1723 (KLR)", Case Analysis (2018). Misc Application No 144 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1723/eng@2018-09-27

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