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ELCAllowedELC Case No. 322 of 2014 (Ruling on Notice of Motion dated 20th December 2017)· [2018] KEELC 2016 (KLR)

Jared Kiprotich Biwott & another v Jonathan Kibe [2018] KEELC 2016 (KLR)

Environment and Land Court
4 July 2018
MOM.A ODENY
1,074 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who opened a criminal case to pressure his opponent in a civil land dispute had that case stopped as an abuse of court process.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (M.A Odeny J) determined a notice of motion dated 20th December 2017 by the defendant in a land suit instituted by the plaintiff in 2014 seeking eviction. The defendant had filed a defence and counterclaim claiming ownership by adverse possession after some 50 years of occupation. During the pendency of the suit, the plaintiff instituted Eldama Ravine Criminal Case No. 742 of 2017 charging the defendant with forcible detainer. The defendant sought a stay of the criminal proceedings and consolidation of the suit with Eldoret ELC No. 398 of 2017. Counsel for the defendant argued that the criminal court was being asked to determine ownership of land, a matter reserved to the ELC under section 13 of the Environment and Land Act, and that the criminal case was a tool for gathering evidence and intimidation, amounting to abuse of process. Counsel for the plaintiff opposed, contending the defendant had encroached and that the judicial review authorities cited were not relevant. The court held that it had jurisdiction over title and occupation disputes, that the criminal court was not suited to determine adverse possession, and that instituting criminal proceedings three years after filing suit, having gone to slumber, was an abuse of court process. Relying on Okon'go J's decision in ELC No. 802 of 2015, the court allowed the application, stayed the criminal case for eighteen months pending hearing and determination of the suit, and ordered consolidation with E&L 398 of 2017.

Key legal issues

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01

Jurisdiction to stay criminal proceedings pending determination of a land dispute

Holding

The ELC has jurisdiction under section 13 of the Environment and Land Act to determine title and occupation disputes and may stay parallel criminal proceedings instituted over the same land.

Reasoning

The court held that ownership of the suit land is the core issue in both matters and that the criminal court cannot determine adverse possession. The plaintiff sued in 2014 but instituted criminal proceedings only in 2017 while the civil suit was pending, which the court found was intended to intimidate the defendant and gather evidence, amounting to an abuse of process. Stay was therefore warranted.

p. 2
02

Relevance of judicial review authorities to land disputes

Holding

Authorities decided in judicial review proceedings remain relevant if their holdings apply to the case at hand.

Reasoning

Counsel for the plaintiff objected that the authorities cited by the defendant were judicial review matters and therefore not relevant. The court rejected the objection, holding that what matters is what was held and its relevance to the current case, and agreed with Okon'go J's holding in ELC No. 802 of 2015 that it would be prejudicial not to stay the criminal proceedings.

p. 2

Legal principles established

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  • The Environment and Land Court has jurisdiction over disputes on use, occupation and title to land, and the criminal court is not suited to determine adverse possession.
  • Instituting criminal proceedings during the pendency of a civil land dispute to intimidate the other party is an abuse of court process.

Court orders

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  1. 1.Eldama Ravine Criminal case No. 742 of 2017 is stayed pending the hearing and determination of this suit
  2. 2.The stay is for a period of eighteen (18) months from the date of the ruling
  3. 3.An order of consolidation of this suit with E&L 398 of 2017 is granted

Authorities

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Legislation

  • Environment and Land Actsection 13

Cases cited (2)

  • Michael Mwongela Musomba Vs Magdalene Ndinda Raphael & 5 others
    Nairobi ELC No. 802 of 2015 (2015) eKLR
  • Republic Vs Inspector General National Police Service & 3 others Exparte Stephen Somba Kithima
    Nairobi High Court Misc. Appl. No 390 of 2013 (2014) eKLR
Jurisdiction invoked
Section 13 of the Environment and Land 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, "Jared Kiprotich Biwott & another v Jonathan Kibe [2018] KEELC 2016 (KLR)", Case Analysis (2018). ELC Case No. 322 of 2014 (Ruling on Notice of Motion dated 20th December 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2016/eng@2018-07-04

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