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ELCDismissedMiscellaneous Application dated 11th February 2019 (arising from Tigania ELC Case No. 209 of 2018 and Maua CMCC No. 148 of 2011)· [2020] KEELC 2347 (KLR)

Miriti Nchooro v M’ M’ithea M’imathu [2020] KEELC 2347 (KLR)

Environment and Land Court
20 May 2020
1,988 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Meru court dismissed a land dispute application, ruling that anyone wanting a magistrate's order changed must go back to the same magistrate's court first.

What this practically means

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Executive summary

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Miriti Nchooro applied by notice of motion dated 11th February 2019 for a stay of orders issued on 20th December 2018 in Tigania ELC Case No. 209 of 2018 and for an opportunity to be heard, contending that the respondent had obtained ex-parte orders while a similar suit between the parties, Maua CMCC No. 148 of 2011, was pending. The respondent raised a preliminary objection that the application ought to have been made at the trial court. The court, having called for both lower court files under section 13(5) of the Environment and Land Court Act, determined the preliminary objection and the application together. The Maua suit, in which the applicant sought boundary corrections, had been dismissed for want of prosecution on 9th October 2018 and was never reinstated, so section 6 of the Civil Procedure Act on sub-judice was not triggered. The court held that the application was in substance a bid to review the Tigania magistrate's orders and that under section 80 of the Civil Procedure Act such relief lies at the trial court, which the applicant had in fact approached on the same day with an identical application. Bypassing the trial court was an abuse of process, and no specific prayer for supervisory jurisdiction had been made. The court dismissed the miscellaneous suit, vacated the status quo orders, severed and remitted both lower court files to their respective courts, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the application was properly before the ELC or ought to have been made at the trial court

Holding

The preliminary objection was meritorious; the application was an abuse of process as the proper forum was the Tigania trial court

Reasoning

The applicant sought in substance a review or setting aside of the magistrate's orders of 20.12.2018. Section 80 of the Civil Procedure Act requires review applications to be made to the court which passed the order. The applicant had in fact filed a similar application at Tigania on the same day, and the explanation for forum shopping was hollow. The ELC is not an appellate forum over the magistrates' court.

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02

Whether the Tigania suit was sub-judice given the prior Maua suit

Holding

No; the Maua suit had been dismissed for want of prosecution on 9/10/2018 and was never reinstated, so no suit was pending to trigger section 6

Reasoning

Section 6 applies where a previously instituted suit is pending. The Maua suit was dismissed on 9/10/2018 for non-compliance with orders of 5.8.2018, and an attempt to reinstate was itself dismissed. The court nonetheless affirmed the policy against two similar suits running concurrently in different courts, holding it could give directions under section 18(1) even on its own motion.

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Legal principles established

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  • An application for review or setting aside of a magistrate's orders must first be made to the trial court that issued them; bypassing it is an abuse of process
  • The mischief of section 6 of the Civil Procedure Act is two courts adjudicating similar matters between the same parties with potentially contradictory outcomes

Court orders

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  1. 1.This miscellaneous suit is hereby dismissed
  2. 2.The status quo orders granted herein are hereby vacated
  3. 3.Each of the lower court file, Maua CMCC no. 148 of 2011 and Tigania CMCC 209 of 2018 are to be severed from this miscellaneous file and to be remitted back to the respective courts with a copy of this ruling
  4. 4.Each party is to bear their own costs of this suit
Jurisdiction invoked
Section 13(5) of the Environment and Land Court Act; supervisory jurisdiction under Section 18(1) of the Civil Procedure Act

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, "Miriti Nchooro v M’ M’ithea M’imathu [2020] KEELC 2347 (KLR)", Case Analysis (2020). Miscellaneous Application dated 11th February 2019 (arising from Tigania ELC Case No. 209 of 2018 and Maua CMCC No. 148 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2347/eng@2020-05-20

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