Celina Nkirina & Daniel Kirimi Mutua v Susan Nkatha, Teresia Kaindia Thirindi, Patrick Kamencu Robert & Martha Wanja Gitonga (Environment & Land Case 41 & 42 of 2020) [2021] KEELC 3487 (KLR)
The bottom line
#A Kenyan court refused to reinstate evicted market traders because it cannot overturn an equal High Court's orders.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC can grant interim relief whose effect would be to reverse the High Court's eviction orders in a succession cause
It cannot; the eviction was court-sanctioned and the ELC, being of equal and concurrent/horizontal jurisdiction with the High Court, cannot clothe itself with appellate attire to review those orders.
The court found that the eviction of the plaintiffs flowed directly from the order of 26.8.2020 in Meru HC Succession Cause No. 308 of 2010. Although the ELC has jurisdiction over land use and occupation, granting reinstatement would effectively overturn a decision of a court of the same status, amounting to forum shopping and a jurisdictional defect that cannot be cured as a mere procedural technicality.
Whether the two suits should be struck out for want of jurisdiction at the interlocutory stage
No; striking out was declined pending a formal preliminary objection on jurisdiction.
The court distinguished between refusing the interim applications (because they sought to unsettle High Court orders) and striking out the suits entirely. Striking out for want of jurisdiction is a substantive question that should be raised formally by preliminary objection, not determined sua sponte at the interlocutory stage.
Legal principles established
#- A court of equal and concurrent (horizontal) jurisdiction cannot set aside or overturn orders issued by another court of the same status; to do so would amount to usurping appellate jurisdiction.
- A suit should not be struck out for want of jurisdiction at the interlocutory stage until the issue is formally raised by way of a preliminary objection.
Court orders
#- 1.The application dated 23.9.2020 marked as spent
- 2.The applications dated 10.9.2020 in both suits dismissed with costs to Susan Nkatha and Teresia Thirindi
- 3.The court declined to strike out the two suits at the interlocutory stage pending a formal preliminary objection on jurisdiction
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court jurisdiction); orders sought under Sections 1A & 3A of the Civil Procedure Act and Order 40 Rules 1, 2 & 10 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Celina Nkirina & Daniel Kirimi Mutua v Susan Nkatha, Teresia Kaindia Thirindi, Patrick Kamencu Robert & Martha Wanja Gitonga (Environment & Land Case 41 & 42 of 2020) [2021] KEELC 3487 (KLR)", Case Analysis (2021). ELC Case No. 41 & 42 of 2020 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3487/eng@2021-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.