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ELCPartially AllowedMiscellaneous Application dated 11th December 2018 (arising from ELC No. 191 of 2017 / PMCC No. 48 of 2017)· [2019] KEELC 3139 (KLR)

Dalco Trading Ltd v Kimaita Imathiu & 3 others [2019] KEELC 3139 (KLR)

Environment and Land Court
29 May 2019
3,681 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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The applicant, Dalco Trading Ltd (through its director Patrick Karani), moved the Environment and Land Court at Chuka by notice of motion dated 11th December 2018 seeking review and setting aside of the order of 29th November 2017 by which ELC No. 191 of 2017 was transferred to Marimanti Law Courts as PMCC No. 48 of 2017, and seeking transfer of that suit back to the High Court for hearing and disposal. The application was premised on a professional valuation of the suit property at over Kshs. 21,600,000 (with total claims exceeding Kshs. 25,000,000), beyond the magistrate's pecuniary jurisdiction, and on the lower court's own ruling of 11th October 2018 staying proceedings for want of pecuniary jurisdiction. The 1st, 2nd and 3rd respondents opposed, arguing parties are bound by their pleadings, that no Order 45 review grounds were established, that the valuation was exaggerated and the application made in bad faith after the applicant lost injunction applications and an amendment request, and that the application was incompetent for want of the order sought to be reviewed. The 4th respondent (Attorney General) raised no objection. The court agreed the applicant was bound by its pleadings and that prior orders (including the dismissed injunction application and the refusal of amendment) remain extant, but exercised its discretion under section 13 of the Environment and Land Court Act to recall the suit to itself for hearing, cautioning against further delays. The court ordered the suit transferred forthwith to the ELC at Chuka, preserved all prior orders, and directed costs to be in the cause.

Key legal issues

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01

Pecuniary jurisdiction of the Marimanti magistrate's court over the suit

Holding

The court held that on the pleadings the applicant was bound, the lower court had jurisdiction, but the judge nonetheless exercised his discretion under section 13 of the ELC Act to recall the suit to the High Court for hearing

Reasoning

The applicant sought transfer on the basis of a valuation placing the suit property at over Kshs. 20,000,000, exceeding the magistrate's pecuniary jurisdiction. The respondents argued the applicant was bound by its pleadings and that no review grounds under Order 45 were established. The judge agreed the applicant was bound by its pleadings, but invoked section 13 of the ELC Act to hear the matter himself, noting prior orders remain extant and warning against delaying tactics.

p. 6
02

Requirements for review under Order 45 of the Civil Procedure Rules

Holding

The respondents' objection that the applicant had not met the Order 45 review criteria (discovery of new matter, error apparent on record, or sufficient reason) was noted; the court did not grant review but exercised its own jurisdiction

Reasoning

The 1st and 2nd respondents submitted that the applicant had not established any Order 45 ground and had improperly side-stepped the mandatory requirements by relying on sections 1A, 1B, 3A, 18 and 63 of the Civil Procedure Act. The court did not expressly rule on the review criteria, instead exercising its section 13 discretion to bring the suit before itself.

p. 4
03

Effect of prior interlocutory orders (dismissed injunction applications and denied amendment)

Holding

All orders issued by the High Court and lower court prior to the application remain extant

Reasoning

The judge noted that an injunction application had been dismissed and an amendment of the plaint denied, so the suit remained as originally framed. Consequently all prior orders were preserved, meaning the applicant does not get a fresh chance to re-litigate injunction or amendment applications.

p. 6

Legal principles established

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  • Parties are bound by their own pleadings, and on those pleadings the lower court had jurisdiction to hear the suit
  • The Environment and Land Court's power over land matters should be exercised carefully and sparingly
  • Escalating interlocutory skirmishes defeats the principal objective of the Environment and Land Court Act of just, expeditious, proportionate and accessible resolution of disputes

Court orders

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  1. 1.That former ELC 191 of 2017 at Chuka, now PMCC No. 48 of 2017 at Marimanti, be brought forthwith to the Environment and Land Court at Chuka for hearing and determination
  2. 2.That all orders issued prior to the delivery of the ruling remain in force
  3. 3.That costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 5, 12, 1A, 1B, 3A, 18, 63
  • Civil Procedure RulesOrder 45
  • Environment and Land Court ActSection 13

Cases cited (4)

  • Amani Mara Ltd vs Shelina Suleiman
    Misc. Application No. 16 of 2017 (Narok)
  • Lilian 'S' vs Caltex Oil Kenya
    (1989) KLRI
  • M'Ikiugu M'Murithi & 2 Others vs Jaspher M'nkanata M'Murithi
    Meru HCCC No. 21 of 1989
  • Henry Mwobobia vs Muthuri Karauri & Anor
    Meru HCCC No. 104 of 1991
Jurisdiction invoked
Section 13 of the Environment and Land Court Act (original jurisdiction over land and environment matters), together with sections 1A, 1B, 3A, 18 and 63 of the Civil Procedure Act invoked by the applicant

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, "Dalco Trading Ltd v Kimaita Imathiu & 3 others [2019] KEELC 3139 (KLR)", Case Analysis (2019). Miscellaneous Application dated 11th December 2018 (arising from ELC No. 191 of 2017 / PMCC No. 48 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3139/eng@2019-05-29

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