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ELCDismissedELC Case of 2020 (Nairobi)· [2021] KEELC 2237 (KLR)

Paul Njuguna Mburu v Melody Wangui Kariuki & another [2021] KEELC 2237 (KLR)

Environment and Land Court
14 June 2021
KBK. BOR
1,666 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 strike out a land dispute suit, ruling the magistrate's court lacked jurisdiction over property worth over Kshs. 80 million.

What this practically means

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Executive summary

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The 1st and 2nd Defendants applied by notice dated 19/10/2020 for the striking out of the plaint as an abuse of the court process or, in the alternative, a stay of these proceedings pending determination of Nairobi CMCC No. 7980 of 2019 (Paul Njuguna Mburu v Melody Wangui Kariuki and Francis Ndegwa Mwangi). They argued that the Plaintiff, having lost an injunction application in the magistrate's court on 17/7/2020, had withdrawn that suit (which carried their counterclaim) and filed this identical suit to deprive them of the fruits of that ruling. The Plaintiff explained that a valuation showed the suit property (L.R. Nos. 14717 and 14718) was worth over Kshs. 80,000,000/-, far beyond the magistrate's court's pecuniary jurisdiction, justifying withdrawal and fresh filing. Both parties accepted the magistrate's court lacked pecuniary jurisdiction. The Plaintiff relied on Equity Bank Limited v Bruce Mutuku on the illegality of transferring a suit filed in a court lacking jurisdiction; the Defendants relied on Theluji Drycleaners and Gitwany Investments and noted their pending ELC Misc. Application No. E075 of 2020 for transfer of the CMCC suit. K. Bor, J declined to strike out the suit or stay it, holding that the interests of justice favoured having the Defendants' counterclaim determined by the ELC, with the Defendants compensated by costs. The application dated 19/10/2020 was dismissed with costs to the Defendants.

Key legal issues

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Whether the plaint should be struck out as an abuse of the court process

Holding

The application to strike out was declined; the interests of justice were better served by having the Defendants' counterclaim transferred and determined by this court.

Reasoning

Both parties accepted that the Magistrate's Court lacked pecuniary jurisdiction over the dispute, whose value exceeded Kshs. 80,000,000/-. What remained before the Magistrate's Court was only the Defendants' counterclaim. The issues in this suit had not been adjudicated there. Striking out the suit would not serve the interests of justice; the Defendants could be compensated by costs.

p. 2

Legal principles established

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  • Where a suit is withdrawn and the court considers it unnecessary to strike out a subsequent suit on the same subject matter, the opposite party may be compensated by costs

Court orders

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  1. 1.The application dated 19/10/2020 is declined
  2. 2.The 1st and 2nd Defendants are awarded the costs of that application

Authorities

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Legislation

  • Civil Procedure ActSection 18

Cases cited (3)

  • Theluji Drycleaners Limited v Muchiri & 3 Others
    [2002] 2 KLR 764
  • Gitwany Investments Limited v Taj Mal Limited
    [2006] 2 EACA 76
  • Equity Bank Limited v Bruce Mutuku t/a Diani Tours Travel
    [2016] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court)

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, "Paul Njuguna Mburu v Melody Wangui Kariuki & another [2021] KEELC 2237 (KLR)", Case Analysis (2021). ELC Case of 2020 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2237/eng@2021-06-14

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