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ELCDismissedNotice of Motion dated 5th November 2019 in a suit at the Environment and Land Court, Nakuru· [2021] KEELC 739 (KLR)

John Muthee Ngunjiri & 4 others v Attorney General & 3 others; Kenya Power & Lighting Co. Ltd & another (Interested parties) [2021] KEELC 739 (KLR)

Environment and Land Court
23 November 2021
2,044 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to block the sale of KANU's Nakuru property, ruling it had no power to interfere with a High Court decree.

What this practically means

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Executive summary

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The plaintiff, KANU Nakuru Branch, moved the Environment and Land Court at Nakuru by Notice of Motion dated 5th November 2019 seeking a moratorium suspending settlement and satisfaction of the decree in Nairobi HCCC No. 14 of 2004 (Commercial & Admiralty Division) and the sale of Nakuru Municipality Block 9/31 pending hearing of its suit. KANU contended that the government's takeover of L.R No. 209/11157 (the KICC site) was forceful and illegal, and that the defendants, not KANU, should satisfy the Kenya Power decree. The 1st interested party, Kenya Power, the decree holder, opposed, arguing the ELC lacked jurisdiction to grant a moratorium over a High Court decree and that the application was res judicata and an abuse of process. The court traced the execution history: the Deputy Registrar disallowed KANU's objection that the branch property could not satisfy the party's liability, and Tuiyott, J dismissed the appeal, holding that a party branch is not a separate legal entity. Holding that the underlying claim was commercial and outside the ELC's jurisdiction, the court found that questions on execution, discharge or satisfaction of a decree must go to the court executing the decree under section 34 of the Civil Procedure Act, and that the ELC cannot exercise oversight over the High Court. The application was dismissed as devoid of merit and an abuse of the court process, with costs to the 1st interested party.

Key legal issues

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01

Whether the Environment and Land Court can stay or suspend execution of a High Court decree

Holding

It cannot; the court has no jurisdiction to stay, review, vary or set aside orders of the High Court, and execution questions fall under section 34 of the Civil Procedure Act to the court executing the decree.

Reasoning

The judgment and decree sought to be suspended arose from a commercial suit (electricity charges) which the ELC never had jurisdiction to entertain. Having issued judgment, the High Court alone retained authority over consequential execution matters. The ELC has concurrent jurisdiction with the High Court and cannot play an oversight role over it. The plaintiff's remedy was appeal or review of the Tuiyott, J decision, not a fresh suit seeking a moratorium.

p. 3
02

Whether the application was an abuse of court process

Holding

Yes; the application was an attempt to circumvent a valid decree and was accordingly dismissed as abusive.

Reasoning

The plaintiff, having lost its objection to attachment before the Deputy Registrar and on appeal before Tuiyott, J, sought to relitigate the execution question through a fresh suit and a 'moratorium' in the ELC. The proper avenues were appeal or review. The court found the suit and application intended to scuttle settlement of a valid decree and constituted an abuse of process.

p. 3
03

Status of the suit property in relation to KANU and its Nakuru Branch

Holding

Nakuru Municipality Block 9/31, though registered in KANU Nakuru Branch, belongs to KANU as the branch is not a separate legal persona.

Reasoning

On appeal from the Deputy Registrar's disallowance of the objection to attachment, Tuiyott, J held that a branch of a political party is not a separate legal entity unless separated by legal instrument or provision, and that property of the branch belongs to the party, paving the way for execution.

p. 3

Legal principles established

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  • All questions relating to the execution, discharge or satisfaction of a decree must be determined by the court executing the decree and not by a separate suit.
  • A branch of a political party is not a separate legal entity from the mother party absent a legal instrument or provision separating them.

Court orders

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  1. 1.The Notice of Motion application dated 5th November 2019 by the plaintiff/applicant is dismissed
  2. 2.Costs to the 1st interested party

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3, 3A, 63(e)
  • Civil Procedure Act (Cap 21)Section 34
  • Civil Procedure RulesOrder 51 Rule 1
  • Environment and Land Court Act No. 19 of 2011Section 13
  • Political Parties Act 2007
  • Constitution of Kenya 2010Articles 48, 50, 159(2), 162(2)(b), 10

Cases cited (1)

  • Republic -vs- Town Clerk of Webuye County Council & Another
    HCCC Misc Appl 448 of 2006 (2014) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act No. 19 of 2011 (considered in determining the limits of the court's jurisdiction); application brought under Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules

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, "John Muthee Ngunjiri & 4 others v Attorney General & 3 others; Kenya Power & Lighting Co. Ltd & another (Interested parties) [2021] KEELC 739 (KLR)", Case Analysis (2021). Notice of Motion dated 5th November 2019 in a suit at the Environment and Land Court, Nakuru. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/739/eng@2021-11-23

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