Esbon Kiura Ben & 4 others v Stanley Njeru Njoka (Chairman Gitare Primary School) & 10 others [2019] KEELC 4907 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the supporting affidavit sworn by the Defendants' counsel was improper
The preliminary objection was overruled; the affidavit was not struck out
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.
Whether the CM's Court proceedings should be transferred to the ELC
No case for transfer was made out
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.
Whether stay, review or discharge of the CM's Court orders of 7th July 2017 should issue
Refused
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.
Whether the Chief Magistrate's Court lacked pecuniary jurisdiction
The court was not satisfied the value of the subject matter was Kshs 53.8 million
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.
Legal principles established
#- 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
#- 1.The Plaintiffs' notice of preliminary objection dated 25th May 2018 is dismissed with costs
- 2.The Defendants' notice of motion dated 18th May 2018 is dismissed in its entirety with costs to the Plaintiffs
- Jurisdiction invoked
- Sections 18, 1A, 3, 3A of the Civil Procedure Act (Cap 21) and all enabling provisions of the law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.