Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedApplication dated 11th June, 2020 (arising from Nairobi ELC Case No. 1248 of 2013)· [2020] KEELC 1409 (KLR)

Kituku Kaluu & another v Josiah Kituku & 13 others; Samuel Wambua Kamuya (Applicant) [2020] KEELC 1409 (KLR)

Environment and Land Court
26 August 2020
1,894 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court restored a plaintiff wrongly struck off the record, holding that mistakes should be fixed with costs, not by ending the case.

What this practically means

#

Executive summary

#
This is a ruling on a notice of motion dated 11th June 2020 in which Samuel Wambua Kamuya, the Applicant, sought review, vacation and setting aside of orders issued on 29th May 2020 declaring that he was not properly on record in the suit, brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 45 Rule 2 of the Civil Procedure Rules. The Applicant relied on a ruling of Gitumbi, J of 1st April 2016 in Nairobi ELC Case No. 1248 of 2013, by which he had been enjoined as a plaintiff to protect the interests of his late father's estate, arguing that the 29th May 2020 ruling impermissibly set aside an order of a court of parallel jurisdiction. The Plaintiff/Respondent, Kituku Kaluu, opposed, contending that the Applicant never filed an amended plaint with a verifying affidavit within the court timelines, so his leave lapsed by operation of law. The 1st to 12th Defendants did not oppose. Mbogo, J held that the 29th May 2020 ruling, in declaring the Applicant not properly on record, purported to set aside the order of a court of parallel jurisdiction without jurisdiction to do so, an error apparent on the face of the record warranting review. The Applicant's non-compliance with directions to file an amended plaint was treated as a blunder curable by costs, in line with the overriding objective and Article 159(2)(d). The Court allowed the application, granting prayer 2, and ordered the Applicant to bear the costs of the application.

Key legal issues

#
01

Whether the ruling of 29th May 2020 was a nullity for want of jurisdiction

Holding

The ruling of 29th May 2020 purported to set aside the order of 1st April 2016 made by Gitumbi, J, a court of parallel jurisdiction; this Court had no jurisdiction to do so and the ruling constituted an error apparent on the face of the record

Reasoning

The 1st April 2016 ruling enjoining the Applicant as plaintiff was delivered by Gitumbi, J of a court of parallel jurisdiction, and no appeal was lodged against it. When the 29th May 2020 ruling declared the Applicant not properly on record, it effectively set aside that order without jurisdiction, a position contrary to the principle in Rajab Oundo Tabiro that such interference opens the court to ridicule. This constitutes an error apparent on the face of the record justifying review under Order 45.

p. 3
02

Whether the Applicant's non-compliance with orders to file an amended plaint defeats his claim to be on record

Holding

The Applicant's failure to file an amended plaint within the timelines, and without a verifying affidavit, was a blunder that should not prevent the suit being heard on its merits

Reasoning

Applying the equity approach in Phillip Chemwolo, unless there is fraud or intention to overreach, an error or default can be put right by payment of costs. There was no evidence of intention to overreach by the Applicant, and Article 159(2)(d) requires justice to be administered without undue regard to procedural technicalities. Substantive justice therefore prevails over the Plaintiff/Respondent's technical objections.

p. 3

Legal principles established

#
  • Orders of one court cannot be varied or set aside by another court of parallel jurisdiction; the only remedy is an appeal
  • Where a court without jurisdiction purports to set aside orders of a court of equal and parallel jurisdiction, the decision is an error apparent on the face of the record and a proper case for review

Court orders

#
  1. 1.The orders of the court issued on 29/05/2020 declaring that the applicant is not properly on record in this suit are reviewed, vacated and/or set aside
  2. 2.The Applicant shall bear the costs of the application

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules (2010)Order 45 Rule 2
  • Civil Procedure RulesOrder 4 Rule 1(2)
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (4)

  • David Ngugi Mbuthia & Another vs. Fina Bank Ltd
    [2007] eKLR
  • Rajab Oundo Tabiro vs. Rukiya Nechesa Tabiro
    [2016] eKLR
  • Phillip Chemwolo & Another vs. Augustine Kibende
    [1986] eKLR
  • Republic vs. District Land Registrar, Uasin Gishu & Another
    [2014] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act and Order 45 Rule 2 of the Civil Procedure Rules (2010)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kituku Kaluu & another v Josiah Kituku & 13 others; Samuel Wambua Kamuya (Applicant) [2020] KEELC 1409 (KLR)", Case Analysis (2020). Application dated 11th June, 2020 (arising from Nairobi ELC Case No. 1248 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1409/eng@2020-08-26

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