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ELCOtherNot stated in the excerpt (original plaint filed 27th February, 2019, Chuka ELC)· [2019] KEELC 2129 (KLR)

Njiru Micheni Nthiga (Suing as a Legal Representative And Administrator of the Estate of the Deceased Leonard R.I. Nthiga) v Governor, Tharaka Nithi County Government & 5 others [2019] KEELC 2129 (KLR)

Environment and Land Court
31 July 2019
1,621 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court removed an MCA from a land dispute because suing him personally served no real purpose, while confirming civil and criminal cases can run at the same time.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Chuka (P.M. Njoroge, J) determined whether the 3rd defendant, Justine Kithinji Stanley Nderi, the Member of County Assembly for Magumoni Ward, should remain a party to a land suit filed on 27th February, 2019 concerning alleged demolitions on LR. Magumoni/Thuita/779, compulsory acquisition of private land, repossession of public land and compensation. The 3rd defendant applied to be removed from the proceedings, deposing that the plaintiff had lodged a criminal complaint of malicious damage of property against him at Chuka Police Station arising from the same events, that the investigation file had been forwarded to the ODPP, and that the plaintiff's renewed pursuit of the criminal complaint while alternative dispute resolution was being explored was an abuse of court process. The plaintiff opposed, relying on section 193A of the Criminal Procedure Code and contending that nothing bars concurrent civil and criminal proceedings. The court held that simultaneous civil and criminal proceedings are lawful and that any abuse grounded on ulterior motive could not be pronounced upon at that stage. Finding that the 3rd defendant was sued in his personal capacity, that the County Assembly was not sued, and that the dominant prayers (restoration of the land, compensation and injunction) could not be implemented against him save for an injunction, the court removed the 3rd defendant from the suit, directed that he not interfere with the substratum of the suit, and made no award of costs.

Key legal issues

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01

Whether the 3rd defendant should be removed from the suit

Holding

The 3rd defendant was removed from the suit because he was sued in his personal capacity, the County Assembly was not sued, and the dominant prayers could not be implemented against him.

Reasoning

The court noted that the 2nd, 4th, 5th and 6th defendants had a clear nexus with the 1st defendant (the Governor), but no nexus between the 3rd defendant and the County Assembly of Tharaka Nithi County was evinced. The dominant prayer (c) sought restoration of the land, compensation and injunctions which, save for the injunction, concerned the other defendants. His continued involvement was therefore of no practical effect and would not prejudice the plaintiff, subject to a bar on interfering with the substratum of the suit.

p. 3
02

Whether parallel civil and criminal proceedings constitute abuse of court process

Holding

The court accepted that civil and criminal proceedings may run simultaneously and declined to determine the abuse-of-process argument at that interlocutory stage.

Reasoning

Both parties agreed that simultaneous civil and criminal proceedings are permissible, which the court endorsed as the correct legal position. It observed that only an ulterior motive in using one process to interfere with or influence the other could be frowned upon, but that this could not be pronounced upon at that stage, adding that it may be desirable to conclude one process before embarking on the other.

Legal principles established

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  • Nothing in law bars parallel civil and criminal proceedings; only an ulterior motive in pursuing one to interfere with the other may be frowned upon, a matter not determinable at interlocutory stage.
  • A defendant sued in a personal capacity with no nexus to the relevant institution and unable to implement the dominant prayers may properly be removed from a suit without prejudice to the plaintiff.

Court orders

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  1. 1.The 3rd defendant is hereby removed from this suit.
  2. 2.No costs are awarded to any of the parties in respect of the removal of the 3rd defendant from this suit.

Authorities

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Legislation

  • Criminal Procedure Codesection 193(A)

Cases cited (1)

  • Diamond Hasham Lalji & Another –vs- Attorney General & 4 Others
    (2018) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over compulsory acquisition of private land, repossession of public land and compensation (statutory provision not stated in the judgment)

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, "Njiru Micheni Nthiga (Suing as a Legal Representative And Administrator of the Estate of the Deceased Leonard R.I. Nthiga) v Governor, Tharaka Nithi County Government & 5 others [2019] KEELC 2129 (KLR)", Case Analysis (2019). Not stated in the excerpt (original plaint filed 27th February, 2019, Chuka ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2129/eng@2019-07-31

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