Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 9th October 2018 (suit at Malindi Environment and Land Court)· [2019] KEELC 1763 (KLR)

Simon Warui Kanoga v Varizone Limited & another [2019] KEELC 1763 (KLR)

Environment and Land Court
20 September 2019
JOJ.O. Olola
1,849 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan land buyer who re-files his dispute in a higher court lost everything because the same case was already running in the Magistrates Court.

What this practically means

#

Executive summary

#
The Plaintiff, Simon Warui Kanoga, moved the Environment and Land Court at Malindi by Notice of Motion dated 9th October 2018 seeking interlocutory injunctions restraining the 1st Defendant, Varizone Limited, from selling, charging, leasing, sub-dividing or entering Plot No. V/508/3 Kilifi (Title No. CR 37174), orders restraining the 2nd Defendant advocate from releasing Kshs 7,000,000.00 to the 1st Defendant or returning the title documents, and an order restraining the 2nd Defendant from acting for the 1st Defendant. The Plaintiff claimed to have purchased the property for Kshs 8,500,000.00, paid the full price and taken possession, only for the 1st Defendant to demolish his structure and evict him. The Defendants asserted that the sale was lawfully rescinded after the Plaintiff defaulted on instalments, and that the transaction had been cancelled twice by the 2nd Defendant's letters. The court found that the 1st Defendant had earlier filed Kilifi SPMCC No. 347 of 2018 against the Plaintiff, in which the Magistrate (R.K. Ondieki, SPM) had issued ex parte injunction orders on 28th September 2018 that remained in force. Rejecting the Plaintiff's argument that the Magistrates Court lacked jurisdiction, the court applied the Court of Appeal's decision in Law Society of Kenya Nairobi Branch v Malindi Law Society, upholding Section 9 of the Magistrates Courts Act. Invoking Section 6 of the Civil Procedure Act, the court declined all orders sought, stayed this suit pending determination of the Kilifi magistrates' suit, and awarded the Defendants costs.

Key legal issues

#
01

Jurisdiction of Magistrates Courts over environment and land matters

Holding

The Kilifi Senior Principal Magistrates Court had jurisdiction to hear the 1st Defendant's suit; the contention of incompetency was unfounded

Reasoning

Relying on the Court of Appeal's decision in Law Society of Kenya Nairobi Branch v Malindi Law Society, the court held that Article 162(2) does not limit Parliament's power to confer jurisdiction on courts established under Article 169(1), and Section 9 of the Magistrates Courts Act validly confers such jurisdiction subject to pecuniary limits.

p. 3
02

Stay of suit under Section 6 of the Civil Procedure Act

Holding

This suit was stayed pending the hearing and determination of the earlier-filed Kilifi SPMCC No. 347 of 2018

Reasoning

The parties conceded that the Magistrates Court suit between the same parties, over the same subject matter, was filed earlier and remained pending with injunction orders neither stayed nor set aside. To avoid conflicting decisions by two competent courts, Section 6 mandated a stay.

p. 3

Legal principles established

#
  • Parliament has power under Article 169(2) of the Constitution to confer jurisdiction on subordinate courts, including over environment and land matters, subject to their pecuniary jurisdiction
  • A court shall not try a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties pending before a court of competent jurisdiction (Section 6, Civil Procedure Act)
  • A party aggrieved by interlocutory orders of a subordinate court must pursue appeal rather than open fresh proceedings on the same subject matter

Court orders

#
  1. 1.Declined to grant any of the orders sought in the Plaintiff's Notice of Motion dated 9th October 2018
  2. 2.Stayed this suit pending the hearing and determination of Kilifi SPMCC No. 347 of 2018
  3. 3.Awarded the Defendants the costs of the application

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 25(c), 50(1), 162(2), 165(5), 169(1)(a)(b)(c), 169(2)
  • Environment and Land Court Actnot specified
  • Magistrates Courts Act, Act No. 26 of 2015Section 9; preamble
  • Civil Procedure ActSection 6

Cases cited (1)

  • Law Society of Kenya Nairobi Branch -vs- Malindi Law Society & 6 Others
    (2017) eKLR
Jurisdiction invoked
Environment and Land Court Act; Article 162(2) of the Constitution; Section 6 of the Civil Procedure Act (stay of suit)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Simon Warui Kanoga v Varizone Limited & another [2019] KEELC 1763 (KLR)", Case Analysis (2019). Notice of Motion dated 9th October 2018 (suit at Malindi Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1763/eng@2019-09-20

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