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ELCDismissedEmbu ELC Case (notice of motion dated 18th May 2018)· [2019] KEELC 4907 (KLR)

Esbon Kiura Ben & 4 others v Stanley Njeru Njoka (Chairman Gitare Primary School) & 10 others [2019] KEELC 4907 (KLR)

Environment and Land Court
22 January 2019
2,630 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Embu Environment and Land Court dismissed attempts to halt a land boundary dispute, confirming that review applications must go to the court that made the original order.

What this practically means

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Executive summary

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The Defendants, sued on behalf of Gitare DEB Primary School, moved the Environment and Land Court at Embu by notice of motion dated 18th May 2018 seeking stay, review or discharge of orders issued by the Chief Magistrate's Court on 7th July 2017 directing the Land Registrar, Embu to remark boundaries of plots Kagaari/Gitare/T.199-204, and seeking withdrawal and transfer to the ELC of Embu CMCC Misc App No. 35 of 2017, a contempt application arising from adoption of a Land Disputes Tribunal award. They argued the decree was irregularly obtained while an appeal was pending before the Appeals Committee and that the CM's Court lacked pecuniary jurisdiction, alleging a subject value of Kshs 53.8 million. The Plaintiffs filed a preliminary objection, including that the supporting affidavit was improperly sworn by state counsel, and a replying affidavit contending only plots worth about Kshs 5 million were in dispute. The court framed three issues. It held only the objection on the advocate-sworn affidavit was a true preliminary objection but overruled it, departing from prior High Court authorities in light of Article 159(1)(d) and section 19(2) of the Environment and Land Court Act. It found no case for transfer, holding alleged irregularities must be pursued by appeal or review, and endorsed Justice Boaz Olao's ruling that the CM's Court was competent to hear the contempt application. It found no merit in the stay or review prayers, review lying only to the court that made the orders, and rejected the pecuniary jurisdiction challenge. The preliminary objection and the motion were both dismissed with costs to the Plaintiffs.

Key legal issues

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01

Whether the supporting affidavit sworn by the Defendants' counsel was improper

Holding

The preliminary objection was overruled; the affidavit was not struck out

Reasoning

The court departed from earlier authorities striking out advocates' affidavits, holding they were pre-2010 Constitution and inconsistent with Article 159(1)(d) and section 19(2) of the Environment and Land Court Act on avoiding technicalities. The Plaintiffs could seek cross-examination, the defect was cured by the Headmaster's further affidavit, and the overriding objective of sections 1A and 1B of the Civil Procedure Act would in any event permit a fresh affidavit.

p. 3
02

Whether the CM's Court proceedings should be transferred to the ELC

Holding

No case for transfer was made out

Reasoning

Though the court had jurisdiction and discretion to transfer, the Defendants showed no good reason. Alleged illegality or irregularity of the decree, or a pending appeal against the Tribunal award, are not grounds for transfer; proper remedies are appeal or review. A transfer would not constitute an appeal against the decree or the award.

p. 3
03

Whether stay, review or discharge of the CM's Court orders of 7th July 2017 should issue

Holding

Refused

Reasoning

Stay could not be entertained absent a pending appeal before the ELC. Review or discharge were misconceived because under Order 45 Rule 1 of the Civil Procedure Rules review lies to the court which made the order, not to an appellate court.

p. 4
04

Whether the Chief Magistrate's Court lacked pecuniary jurisdiction

Holding

The court was not satisfied the value of the subject matter was Kshs 53.8 million

Reasoning

The Plaintiffs' claim before the Tribunal concerned five plots of about 0.75 acres which they claimed the school had encroached upon, not the 12-acre school land. On the record the asserted value of Kshs 53.8 million was not substantiated, so the pecuniary jurisdiction challenge failed.

p. 4

Legal principles established

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  • An advocate may swear a supporting affidavit on contentious matters; the affidavit will not be struck out where the defect is capable of remedy and the overriding objective applies
  • Only a pure point of law qualifies as a preliminary objection; objections requiring factual inquiry, such as res judicata, do not
  • An application for review must be directed to the court which issued the orders, not an appellate court

Court orders

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  1. 1.The Plaintiffs' notice of preliminary objection dated 25th May 2018 is dismissed with costs
  2. 2.The Defendants' notice of motion dated 18th May 2018 is dismissed in its entirety with costs to the Plaintiffs

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)sections 18, 1A, 1B, 3, 3A
  • Environment and Land Court Actsection 19(2)
  • Constitution of Kenya 2010Article 159(1)(d)
  • Civil Procedure RulesOrder 45 Rule 1

Cases cited (3)

  • Mukisa Biscuits Manufacturing Co Ltd Vs West End Distributors Ltd
    [1969] E.A 696
  • Kisya Investments Ltd & Another Vs Kenya Finance Corporation Ltd
    Nairobi HCCC No. 3504 of 1993
  • Kenya Horticultural Exporters (1997) Ltd Vs Transami Kenya Ltd
    Nairobi HCCC No. 1405 of 1999
Jurisdiction invoked
Sections 18, 1A, 3, 3A of the Civil Procedure Act (Cap 21) and all enabling provisions of the law

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, "Esbon Kiura Ben & 4 others v Stanley Njeru Njoka (Chairman Gitare Primary School) & 10 others [2019] KEELC 4907 (KLR)", Case Analysis (2019). Embu ELC Case (notice of motion dated 18th May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4907/eng@2019-01-22

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