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ELCDismissedNot stated in judgment (application dated 12th March 2020)· [2020] KEELC 571 (KLR)

Patrick Wafula Kaburu v Attorney General & 18 others [2020] KEELC 571 (KLR)

Environment and Land Court (High Court), Kakamega
24 November 2020
NMN.A. MATHEKA
1,246 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a land case application, ruling that bribery accusations against judicial officers must be backed by real evidence, not suspicion.

What this practically means

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Executive summary

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The applicant, Patrick Wafula Kaburu, moved the Environment and Land Court at Kakamega by a notice of motion dated 12th March 2020, brought under Article 165(3) of the Constitution. He sought urgent orders that the court call for the entire file of Kimilili SPM ELC No. 52 of 2019, certify an application dated 28th October 2019 as urgent, grant an ex-parte injunction, and direct that an application dated 18th December 2019 be heard ex-parte. The application was supported by his affidavit and grounds alleging that the defendants in Kimilili SPM ELC Case No. 52 of 2019 had bribed clerks and judicial officers in the Kimilili SPM's Civil Registry to fix an early date on an interim-injunction application, contrary to the timelines in Order 40 and Order 10 of the Civil Procedure Rules. The 7th respondent, Peter Sigak Mudogo, opposed the application, submitting that the applicant's Kimilili application had been dismissed for non-attendance and want of prosecution, that the bribery claims were conjecture without material particulars, that the applicant had unclean hands, and that competent magistrates remained at the station, making the application bad faith and an abuse of judicial time. The court held that the serious allegations of corruption against judicial officers and registry staff were unsubstantiated and unsupported by evidence, that a dissatisfied litigant's proper remedy is appeal, and that asking for transfer of cases in such circumstances is an abuse of court process. The application was dismissed with costs to the 7th respondent.

Key legal issues

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01

Unsubstantiated allegations of bribery against judicial officers

Holding

Allegations unsupported by evidence cannot ground the relief sought

Reasoning

The applicant alleged that defendants bribed clerks and judicial officers in the Kimilili SPM's Civil Registry to fix a hearing date. The court found no evidence was adduced to support these serious allegations, and that the applicant approached the court with unclean hands, disqualifying him from the remedies sought.

p. 3
02

Abuse of court process through transfer applications

Holding

Asking for transfer of cases instead of appealing is an abuse of process

Reasoning

The court held that where an applicant is dissatisfied with an order of a court, the proper avenue is appeal, not an application to transfer the case to another court. The application was found to be made in bad faith and calculated to castigate the courts and the respondent, wasting judicial time.

p. 3

Legal principles established

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  • Allegations of judicial misconduct must be substantiated with evidence
  • A party aggrieved by a court order should appeal rather than seek transfer of the case

Court orders

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  1. 1.The application dated 12th March 2020 is dismissed with costs to the 7th respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 165(3)(a), (b), (c), (d), (i), (ii), (6) and (7)
  • Civil Procedure RulesOrder 40 rule 5
  • Civil Procedure RulesOrder 40 rule 4(3)
  • Civil Procedure RulesOrder 40 rule 4(4)
  • Civil Procedure RulesOrder 10 rule 6
  • Civil Procedure RulesOrder 10 rule 8
  • Civil Procedure RulesOrder 10 rule 9
  • Civil Procedure RulesOrder 10 rule 10
  • Civil Procedure RulesOrder 10 rule 11
Jurisdiction invoked
Article 165(3)(a), (b), (c), (d), (i), (ii), (6) and (7) of the Constitution of Kenya

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, "Patrick Wafula Kaburu v Attorney General & 18 others [2020] KEELC 571 (KLR)", Case Analysis (2020). Not stated in judgment (application dated 12th March 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/571/eng@2020-11-24

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