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ELCDismissedNotice of Motion dated 12/6/2019 (ELC, Murang'a)· [2021] KEELC 4047 (KLR)

Makindi Primary School v Elijah Mugo & 8 others [2021] KEELC 4047 (KLR)

Environment and Land Court
11 March 2021
2,514 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 dismissed a school's land claim because it was filed 23 years too late, without a proper suit, and by the wrong person.

What this practically means

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Executive summary

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By a Notice of Motion dated 12 June 2019, the Applicant, suing through Lucy Wachira Njeri, sought injunctions restraining the Respondents from developing land parcel LR 23356, an order calling for the file of PMCC No. 424 of 1996 for enforcement of eviction orders issued on 14 March 2002, permanent restraint and eviction of the Respondents, and leave to fence the parcel. The Applicant maintained it was the registered owner and that the Respondents were trespassers continuing occupation despite the earlier eviction orders. The Respondents opposed the motion as misconceived, statute barred, and an abuse of process, asserting occupation of a different parcel (LR 311/2/1) since the 1970s, with a pending recommendation to the National Land Commission for allocation. The court framed five issues: validity of the suit, statute bar, res judicata, locus standi and costs. It held that a notice of motion must be anchored on a suit and this one was not; that execution of the 1996/2002 orders was barred by section 4(4) of the Limitation of Actions Act, the orders having lapsed by 2008; that the matter was res judicata, the same parties and land having been determined by a competent court; and that only a school committee or board of management, not the Applicant personally, could sue for the school. The invitation to call for the missing lower court file was declined, the court finding the fresh motion, rather than pursuit of execution or reconstruction of that file, to be an abuse of process. The motion was dismissed with costs to the Respondents.

Key legal issues

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01

Whether a valid suit existed before the Court

Holding

No; the notice of motion was not anchored on a suit.

Reasoning

The Civil Procedure Act defines a suit as civil proceedings commenced in a prescribed manner. Motions under Order 51 must be anchored on a suit, especially where determination of rights is sought. A notice of motion cannot itself be taken as a suit under Section 2 of the Civil Procedure Act, so the motion stood in a vacuum.

p. 2
02

Whether the 2002/1996 orders were statute barred

Holding

Yes; execution was barred by section 4(4) of the Limitation of Actions Act.

Reasoning

Orders issued in the subordinate court in 1996 (eviction orders of 2002) had to be executed within twelve years, i.e. by 2008. The motion filed in 2019 came some 23 years later, so no orders capable of execution existed and eviction was statute barred.

p. 3
03

Whether the motion was res judicata

Holding

Yes; the same parties and same land had been determined by a competent court.

Reasoning

Section 7 of the Civil Procedure Act bars relitigation of issues determined by a competent court. On perusal of the pleadings in the suit and the lower court case, the parties and the suit land were the same and the matter had been heard and determined, so the doctrine applied.

p. 3
04

Whether the Applicant had locus standi

Holding

No; only the Board of Management or school committee could sue for the school.

Reasoning

Under the Basic Education Act the Board of Management is a body corporate with perpetual succession that may sue or be sued; under the Education Act and related regulations a school committee manages a primary school. The Applicant could not bring the claim in her own name.

p. 4
05

Whether the court should call for the lost PMCC No. 424 of 1996 file

Holding

No; the proper course was to seek execution or reconstruction of the file in that case.

Reasoning

Section 34 of the Civil Procedure Act vests execution questions in the court executing the decree. Accusations of meddling with a court file were unsupported by evidence. Failure to seek reconstruction of the misplaced file and instead instituting a fresh motion amounted to abuse of court process.

p. 4

Legal principles established

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  • Execution of judgments and decrees is governed by section 4(4) of the Limitation of Actions Act; an action may not be brought upon a judgment after twelve years from the date of the judgment.
  • A notice of motion must be anchored on a suit; an application seeking determination of rights cannot itself constitute a suit.
  • Only a school committee or board of management, as corporate bodies under the Education Act, may sue or be sued on behalf of a public school, not individual officials.

Court orders

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  1. 1.The Notice of Motion dated 12/6/2019 is dismissed
  2. 2.Costs of the motion to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSection 2; Section 7; Section 34
  • Civil Procedure RulesOrder 51
  • Limitation of Actions ActSection 4(4)
  • Basic Education ActFourth Schedule; Board of Management provisions
  • Education Act (Cap 211)Section 9; Section 10(2)(2)
  • Education (School Committees) Regulationsgeneral

Cases cited (6)

  • Willis Onditi Odhiambo –vs- Gateway Insurance Co. Ltd
    (2014) eKLR
  • Hudson Moffat Mbue –vs- Settlement Fund Trustees & 3 others
    ELC NO. 5704 of 1992 (OS)
  • William Koross v. Hezekiah Kiptoo Komen & 4 Others
    CA. No. 223 of 2013
  • Henderson v. Henderson
    (1843-60) All ER 378
  • Republic vs The Secretary to the Board of Governors, Musingu High School-Kakamega
    (2011) eKLR
  • Headmistress Menengai Primary School Another –vs- Jamila Anyona
    (2006) eKLR
Jurisdiction invoked
Article 162(2) Constitution (Environment and Land Court); motion under Order 51 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, "Makindi Primary School v Elijah Mugo & 8 others [2021] KEELC 4047 (KLR)", Case Analysis (2021). Notice of Motion dated 12/6/2019 (ELC, Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4047/eng@2021-03-11

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