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ELCOtherNot stated in the judgment (Nakuru ELC suit; related matter Nakuru CMCC No. 869 of 2014)· [2018] KEELC 2761 (KLR)

Peter B. M. Chiera v County Government of Nakuru & 2 others [2018] KEELC 2761 (KLR)

Environment and Land Court
12 June 2018
1,104 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Nakuru land judge refused to hear a second lawsuit over the same property already before the magistrate's court, transferring the entire case there.

What this practically means

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Executive summary

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The plaintiff moved the Environment and Land Court at Nakuru by Notice of Motion dated 24th July 2017 seeking an interlocutory injunction restraining the 2nd and 3rd defendants from disposing of or interfering with plot 'E' 10 Residential at Njoro Squatters 11, plus police supervision of execution and costs. The plaintiff claimed ownership and possession since July 1998 and alleged that the 2nd and 3rd defendants took over the plot and began construction on 10th July 2017. The application was opposed by all three defendants. Before reaching the merits, the court dealt with the existence of an earlier suit, Nakuru CMCC No. 869 of 2014, between the same parties over the same subject matter, which the plaintiff conceded in paragraph 15 of the plaint. Relying on the Court of Appeal's decision in Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others [2017] eKLR, the court held that the subordinate court had and continues to have jurisdiction over that matter. Section 6 of the Civil Procedure Act therefore barred these proceedings as sub judice. The court declined to determine the merits of the injunction application and ordered the entire suit, including the pending application, transferred to the Chief Magistrate's Court Nakuru, which was to consider consolidating it with the 2014 suit. Costs were awarded in the cause. The ruling was delivered on 12th June 2018 by D. O. Ohungo, Judge.

Key legal issues

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01

Sub judice under Section 6 of the Civil Procedure Act

Holding

This suit, filed after Nakuru CMCC No. 869 of 2014 between the same parties over the same subject matter, cannot proceed; it must be transferred for possible consolidation

Reasoning

The applicant conceded that the parties and subject matter in the subordinate court suit are identical to those in this suit. The subordinate court matter was filed in 2014, before this suit, and is pending. Section 6 of the Civil Procedure Act therefore bars this court from proceeding with the trial of this suit, including the pending Notice of Motion dated 24th July 2017, which must be determined by the court seized of the earlier matter.

p. 2
02

Jurisdiction of the subordinate court over land disputes

Holding

The subordinate court had and continues to have jurisdiction to hear and determine Nakuru CMCC No. 869 of 2014, per the Court of Appeal in Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others

Reasoning

The applicant argued that questions of jurisdiction had stalled the subordinate court matter. The court relied on the Court of Appeal's decision confirming that although the ELC has jurisdiction over land disputes, Parliament may confer jurisdiction on magistrates' courts over such disputes, and the High Court is barred from matters within the jurisdiction of specialized courts. The transfer to the Chief Magistrate's Court is consistent with that jurisdictional position.

p. 2

Legal principles established

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  • Where a previously instituted suit between the same parties over the same subject matter is pending, no court shall proceed with the trial of the later suit (sub judice rule, Section 6, Civil Procedure Act)
  • Magistrates' courts have jurisdiction over environment and land disputes under enabling legislation; the High Court (and by extension the ELC) is barred from matters within the jurisdiction of the specialized courts where Parliament has conferred jurisdiction on magistrates' courts

Court orders

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  1. 1.This suit inclusive of the pending Notice of Motion dated 24th July 2017 is transferred to the Chief Magistrate's Court Nakuru for hearing and determination
  2. 2.Chief Magistrate's Court Nakuru to consider consolidation of this matter with Nakuru CMCC No. 869 of 2014
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Constitution of KenyaArticle 162(2)
  • Constitution of KenyaArticle 165(5)
  • Constitution of KenyaArticle 169

Cases cited (1)

  • Law Society of Kenya Nairobi Branch –vs- Malindi Law Society & 6 others
    [2017] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (Environment and Land Court jurisdiction); Section 6 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, "Peter B. M. Chiera v County Government of Nakuru & 2 others [2018] KEELC 2761 (KLR)", Case Analysis (2018). Not stated in the judgment (Nakuru ELC suit; related matter Nakuru CMCC No. 869 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2761/eng@2018-06-12

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