Kituku Kaluu & another v Josiah Kituku & 13 others; Samuel Wambua Kamuya (Applicant) [2020] KEELC 1409 (KLR)
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
#Key legal issues
#Whether the ruling of 29th May 2020 was a nullity for want of jurisdiction
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
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.
Whether the Applicant's non-compliance with orders to file an amended plaint defeats his claim to be on record
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
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.
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.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.The Applicant shall bear the costs of the application
- 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.