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ELCPartially AllowedMiscellaneous ELC Appeal (Ngong Magistrate's Court Miscellaneous ELC No. 3 of 2018)· [2021] KEELC 1158 (KLR)

Florence Akoth Oduk v Robert Maina Kamanja [2021] KEELC 1158 (KLR)

Environment and Land Court
3 November 2021
MGM.N. Gicheru
1,366 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court ruled a wrongly-filed land case should be converted to a proper suit, not thrown out.

What this practically means

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Executive summary

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The appellant appealed to the Environment and Land Court at Kajiado against a ruling of the Ngong Magistrate's Court dated 2nd October 2019, which dismissed her Originating Summons (Miscellaneous ELC No. 3 of 2018) concerning an alleged breach of a contract dated 7th December 2017. The Trial Magistrate held that Originating Summons procedure under Order 37 Rule 3 of the Civil Procedure Rules is reserved for simple and specific matters, and that the validity of the contract had first to be determined, so the dispute could not proceed by summons; the plaintiff was left at liberty to file a plaint. The appeal raised four grounds, principally that the magistrate misconstrued the summons as raising contractual validity, and that she ought to have converted the summons to a plaint rather than dismissing it outright. The court framed two issues: whether the suit was properly commenced, and whether it should have been dismissed. On the first, it found the suit improperly commenced, the affidavits being voluminous and controverted almost verbatim, making affidavit evidence unsuitable, in line with Kibutiri v Kibutiri. On the second, applying the overriding objective in Section 1A of the Civil Procedure Act, Section 3 of the Environment and Land Court Act, and Order 37 Rule 19(1), the court held the magistrate should have converted the proceedings into a suit begun by plaint rather than dismissing them. The appeal succeeded: the ruling was set aside and the case remitted to a different magistrate to proceed from where it had reached, with costs deferred to the conclusion of the lower court suit.

Key legal issues

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01

Whether the suit was properly commenced by Originating Summons under Order 37 Rule 3 Civil Procedure Rules

Holding

The suit was not properly commenced because the controverted, voluminous affidavit evidence raised serious and complex questions of fact and law unsuited to Originating Summons procedure.

Reasoning

The supporting affidavit had 30 paragraphs with 41 pages of annexures, matched by an almost equally voluminous replying affidavit. The depositions were controverted almost verbatim and the character of the agreement changed in content and context over time. Affidavit evidence could not resolve such a dispute, which is better suited to a plaint. The court endorsed the Kibutiri v Kibutiri formulation that Originating Summons is for simple matters.

p. 2
02

Whether the Trial Magistrate should have dismissed the suit or converted it to a plaint

Holding

Dismissal was wrong; the court should have exercised its power under Order 37 Rule 19(1) to order the proceedings to continue as if begun by plaint, consistent with the overriding objective in Section 1A of the Civil Procedure Act and Section 3 of the Environment and Land Court Act.

Reasoning

Order 37 Rule 19(1) empowers the court, at any stage, to order that proceedings commenced by Originating Summons continue as if begun by plaint, with affidavits standing as pleadings. The overriding objective requires just, expeditious, proportionate and affordable resolution. Dismissing the suit outright defeated these provisions, so the ruling dismissing the summons was set aside and the case remitted to a different magistrate.

p. 3

Legal principles established

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  • Originating Summons procedure is meant only for simple matters, not serious and complex questions of law and fact.
  • Where proceedings commenced by Originating Summons should have been continued as if begun by plaint, the court should convert them rather than dismiss the suit outright, in line with the overriding objective.
  • An appellate court will not interfere with a trial court's findings unless the decision was clearly wrong due to misdirection.

Court orders

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  1. 1.The ruling and the order of the Trial Magistrate dated 2nd October, 2019 dismissing the summons is set aside.
  2. 2.The case to proceed before a different Magistrate who is to proceed from where it had reached before dismissal.
  3. 3.The issue of costs in this case and in the Lower Court to be decided at the conclusion of the Lower Court suit.

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 3
  • Civil Procedure RulesOrder 37 Rule 18
  • Civil Procedure RulesOrder 37 Rule 1a
  • Civil Procedure RulesOrder 37 Rule 19(1)
  • Civil Procedure ActSection 1A(1)
  • Civil Procedure ActSection 1B
  • Environment and Land Court ActSection 3
  • Constitution of KenyaArticle 159

Cases cited (2)

  • Kibutiri –Vs- Kibutiri
    (1982) KLR
  • Mbogo –vs- Shah
    1968 EA 95
On appeal from
Ngong Magistrate's Court
Miscellaneous ELC No. 3 of 2018
Jurisdiction invoked
Appellate jurisdiction over appeals from the Magistrate's Court in environment and land matters (Environment and Land Court 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, "Florence Akoth Oduk v Robert Maina Kamanja [2021] KEELC 1158 (KLR)", Case Analysis (2021). Miscellaneous ELC Appeal (Ngong Magistrate's Court Miscellaneous ELC No. 3 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1158/eng@2021-11-03

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