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ELCPartially AllowedELC No. 544 of 2016 (Nakuru), consolidated with ELC No. 21 of 2017· [2018] KEELC 2204 (KLR)

Elisha Chebii Chesinya v Domiziano Kaburu Njeru [2018] KEELC 2204 (KLR)

Environment and Land Court
13 July 2018
1,443 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on directions by the Environment and Land Court at Nakuru in consolidated suits arising from a disputed sale of 15 acres out of plot No. 33 Olongai Scheme. Chesinya sued Njeru (ELC No. 544 of 2016) alleging full payment of the KShs. 27,000,000/= purchase price and sought an injunction against Njeru's interference; Njeru filed a separate suit (ELC No. 21 of 2017) contending only KShs. 11,000,000/= was paid and that the sale lapsed for want of Land Control Board consent, and sought his own injunction. By consent of 21st March 2017 the suits were consolidated with ELC No. 544 of 2016 as lead file. On 5th December 2017 the court dismissed both injunction applications for want of a prima facie case, maintaining the status quo and restraining any subdivision, sale, transfer, lease or disposition. Following complaints that orders were extracted under conflicting headings and that Njeru damaged crops, Chesinya sought clarification by Certificate of Urgency. The court held that consolidation changes the title of the cause, that extracted orders should bear the heading used in the 5th December 2017 ruling, and that the orders themselves are specific and bind both parties equally. Finding Njeru had filed no replying affidavit to contest Chesinya's affidavit, the court directed that Chesinya retain possession and use of the 15 acres pending hearing, ordered the parties to set the suit down urgently, and awarded costs in the cause.

Key legal issues

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01

Effect of consolidation on extraction of orders

Holding

The lead file, ELC No. 544 of 2016, was confirmed as such by consent recorded on 21st March 2017, and orders must be extracted under the heading used in the ruling of 5th December 2017 which captured the consolidation

Reasoning

The court noted that the consent of 21st March 2017 consolidated the suits and selected ELC No. 544 of 2016 as lead file. The ruling of 5th December 2017 bore the consolidated title. Parties wrongly submitted drafts under separate headings, and the deputy registrar wrongly signed orders under separate headings, but the extracted orders were specific and bound both parties equally.

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02

Possession and use of the suit property pending hearing

Holding

Chesinya to retain possession and use of the 15 acres pending hearing, subject to the earlier status quo orders

Reasoning

The court had previously declined to determine possession due to dearth of evidence. On the present application, Njeru filed no replying affidavit to contest Chesinya's affidavit filed 14th June 2018 complaining of invasion and crop damage, so the uncontroverted material showed Chesinya in possession. The court therefore directed that he retain possession and use.

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Legal principles established

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  • Once causes are consolidated, the title of the consolidated cause changes accordingly, and extracted orders should bear the heading of the consolidated/lead file rather than the separate suits
  • Litigants cannot demand that the court guide them on every detail; the duty to obey and uphold the law rests on every person

Court orders

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  1. 1.The orders made in the ruling delivered on 5th December 2017 remain in force, and those orders and future orders must be extracted using the heading used in the ruling delivered on 5th December 2017 as long as the consolidation remains as ordered on 21st March 2017
  2. 2.Elisha Chebii Chesinya to retain possession and use of the 15 acres of plot No. 33 Olongai Scheme pending hearing and determination of the suit, subject to the orders made in the ruling delivered on 5th December 2017
  3. 3.Parties to urgently set down the suit for hearing
  4. 4.Costs in the cause
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the consolidated suits, ELC No. 544 of 2016 and ELC No. 21 of 2017

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, "Elisha Chebii Chesinya v Domiziano Kaburu Njeru [2018] KEELC 2204 (KLR)", Case Analysis (2018). ELC No. 544 of 2016 (Nakuru), consolidated with ELC No. 21 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2204/eng@2018-07-13

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