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ELCStruck OutELC Chamber Summons dated 12th November 2019 (arising from Notice of Motion dated 11th September 2019)· [2020] KEELC 1927 (KLR)

Joseph Karimi Muriuki v Stephen Aurelius Gachua & 3 others [2020] KEELC 1927 (KLR)

Environment and Land Court
12 June 2020
ECE.C. Cherono
1,286 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that you cannot use Article 165(6) supervisory jurisdiction to police a magistrate's court—appeal is the proper route.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kerugoya determined a preliminary objection dated 21st January 2020 raised by the 2nd and 3rd respondents against the applicant's Chamber Summons dated 12th November 2019. The applicant, acting in person, had sought orders calling for the file in ELC No. 39 of 2018 at Kerugoya Law Courts, supervising that case under Article 165(6) of the Constitution, and stopping the magistrates from issuing contradictory orders allegedly affecting his property, parcel No. MWERUA/MUKURE/2130. The respondents did not file submissions; the applicant argued that the Court should favour substantive justice over procedural technicalities. The court held that the applicant had not cited any provision of law under which the orders could be granted, and that the relief sought was in the nature of revision akin to Section 362 of the Criminal Procedure Code, which is not available to the High Court in civil matters. Supervisory jurisdiction under Article 165(6) does not extend to policing subordinate courts; the proper avenue for an aggrieved litigant is appeal under the Civil Procedure Act. The preliminary objection was upheld, the Chamber Summons was declared incompetent and improperly before the Court, and it was struck out with no order as to costs.

Key legal issues

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01

Whether the applicant's Chamber Summons seeking supervision of a magistrate's court file under Article 165(6) is competent

Holding

The application was incompetent and improperly before the Court; the Preliminary Objection was upheld and the Chamber Summons struck out

Reasoning

The applicant commenced the suit by way of a miscellaneous application without citing any provision of law under which the orders could be granted. The orders sought were in the nature of revision, akin to Section 362 of the Criminal Procedure Code, which the court held is unavailable in civil matters. Supervisory jurisdiction under Article 165(6) is not a form of policing subordinate courts; a dissatisfied litigant's avenue is appeal under the Civil Procedure Act.

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02

The nature and limits of supervisory jurisdiction under Article 165(6) of the Constitution

Holding

Supervisory jurisdiction over subordinate courts does not permit the High Court to police subordinate courts in the performance of their duties; the proper avenue is appeal

Reasoning

The court read Article 165(6) together with the supervisory and appellate provisions of the Civil Procedure Act (Sections 78, 79A and 79B) and Order 42, concluding that a party aggrieved by a decree or order of a subordinate court must challenge it by appeal, not by an application calling for and supervising the file.

p. 3

Legal principles established

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  • The High Court's supervisory jurisdiction over subordinate courts under Article 165(6) is not a power of policing them in the performance of their duties
  • Powers of revision under Section 362 of the Criminal Procedure Code are not available in the High Court when determining civil cases

Court orders

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  1. 1.The Preliminary Objection dated 21st January 2020 is upheld
  2. 2.The Chamber Summons dated 12th November 2019 is declared incompetent and improperly before the Court and is struck out
  3. 3.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 165(6)
  • Civil Procedure ActSection 78
  • Civil Procedure ActSection 79A
  • Civil Procedure ActSection 79B
  • Civil Procedure RulesOrder 42
  • Criminal Procedure CodeSection 362
Jurisdiction invoked
Article 165(6) of the Constitution of Kenya invoked by the applicant for supervisory jurisdiction

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, "Joseph Karimi Muriuki v Stephen Aurelius Gachua & 3 others [2020] KEELC 1927 (KLR)", Case Analysis (2020). ELC Chamber Summons dated 12th November 2019 (arising from Notice of Motion dated 11th September 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1927/eng@2020-06-12

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