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ELCStruck OutMiscellaneous Application dated 8/10/2020· [2020] KEELC 406 (KLR)

Andrew Ayuka Amunze v Ben Mutenyo Adongo & 2 others [2020] KEELC 406 (KLR)

Environment and Land Court
8 December 2020
MNMwangi Njoroge
1,029 words in judgment
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The bottom line

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A Kenyan court struck out a landowner's bid for police help to fence his land because he filed an application instead of a proper lawsuit.

What this practically means

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Executive summary

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By a Notice of Motion dated 8 October 2020, filed under Section 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, the applicant sought an order that he be provided security to enable him to fence LR No. KOLONGOLO/KOLONGOLO BLOCK 2/BIKETI/206, and that the Officer Commanding Kwanza Police Station be directed to assist in enforcing that order. The dispute arose from a boundary survey in which boundary marks fell beyond what the parties had perceived to be the boundary, prompting threats from the respondents to violently stop the fencing. The respondents filed replying affidavits; only the applicant filed submissions. The court held that the application was not a suit and rested solely on the inherent jurisdiction provision, rendering its legal foundation unsatisfactory. Applying Geoffrey Ndungu Theuri v Law Society of Kenya and Peter Kwema Kahoro v Benson Maina Githethuki, the court noted that suits must be instituted in a prescribed manner and that Section 3A confers no power to act without jurisdiction. It advised the applicant to consider commencing a proper suit, observing that his recourse to the relevant land offices to verify boundaries was lawful and deserving of neighbours' co-operation rather than blunt opposition. The application was struck out, with each party bearing their own costs. Judgment delivered at Kitale on 8 December 2020 by Mwangi Njoroge J.

Key legal issues

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01

Whether a miscellaneous application under Section 3A of the Civil Procedure Act and Order 51 Rule 1 can sustain an order for security/police assistance in a boundary dispute

Holding

No. Such relief requires a suit instituted in a prescribed manner; the application was incompetent and was struck out, albeit with no order as to costs given the applicant's legitimate attempts to verify boundaries.

Reasoning

The court held that the application rested solely on Section 3A of the Civil Procedure Act and Order 51 Rule 1. Citing Geoffrey Ndungu Theuri and Peter Kwema Kahoro, it noted that suits must be instituted in a prescribed manner, by plaint or other prescribed mode, and that Section 3A cannot be used to obtain relief without jurisdiction. The applicant was advised to commence a proper action.

p. 1

Legal principles established

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  • An applicant is not entitled to injunctive or related relief without filing a suit; Section 3A of the Civil Procedure Act does not confer jurisdiction to act without a properly instituted suit
  • A party who has involved the relevant offices to establish proper boundaries should be co-operated with by neighbours rather than met with blunt opposition

Court orders

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  1. 1.The application dated 8/10/2020 is struck out
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 19
  • Civil Procedure ActSection 2
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 3 Rule 1
  • Civil Procedure RulesOrder 39
  • Civil Procedure RulesOrder IV Rule 1 (as cited in Peter Kwema Kahoro)

Cases cited (2)

  • Geoffrey Ndungu Theuri -vs- Law Society of Kenya
    1998 eKLR
  • Peter Kwema Kahoro -vs- Benson Maina Githethuki
    [2005] eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010 (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, "Andrew Ayuka Amunze v Ben Mutenyo Adongo & 2 others [2020] KEELC 406 (KLR)", Case Analysis (2020). Miscellaneous Application dated 8/10/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/406/eng@2020-12-08

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