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ELCDismissedELC No. 851 of 2017 (Thika)· [2021] KEELC 4721 (KLR)

John Mwangi Kamau v David Mwaura Nduruhu [2021] KEELC 4721 (KLR)

Environment and Land Court
14 January 2021
4,495 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Environment and Land Court at Thika (L. Gacheru, J) determined three applications in a dispute over LR No. 4953/34/IV, Thika. The Plaintiff, John Mwangi Kamau, claimed to have purchased the property in 2016 from beneficiaries of the Estate of John Muiruri Kabaru for Kshs. 55,000,000 and sought injunction, vacant possession and declaration of ownership. The Defendant, David Mwaura Nduruhu, claimed he bought the same property in 2009 from Peter Kabaru Muiruri and Jane Wambui Kabaru and is the Plaintiff in partly-heard Nairobi ELC No. 17 of 2014 seeking specific performance against the estate administrators. First, the Defendant's application for stay of this suit under Section 6 of the Civil Procedure Act pending ELC No. 17 of 2014 was disallowed; although the subject matter was identical, the Court noted it could not ascertain the progress of the partly-heard Nairobi suit and preferred that the parties avail its outcome during trial. Second, the Plaintiff's application to consolidate this suit with ELC No. 17 of 2014 and to transfer Thika CMCC No. 59 of 2017 to the ELC was refused: consolidation would delay the partly-heard 2014 matter contrary to the overriding objective in sections 1A and 1B of the Civil Procedure Act, and the CMCC suit, having been filed in a court found to lack pecuniary jurisdiction, could not be transferred. Third, the Defendant's application for a mandatory injunction to reinstate him to premises demolished and carted away on 5th October 2020, and a temporary injunction, was dismissed; the Court held the application was overtaken by events, orders would issue in vain, and any quantifiable loss would be compensable in damages. All three applications failed with costs in the cause, and the parties were directed to prepare the suit for hearing on merit.

Key legal issues

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01

Stay of proceedings under Section 6 of the Civil Procedure Act (sub-judice)

Holding

Stay was refused because the previously instituted suit was partly heard and its current status unknown; the parties can avail its outcome during the hearing

Reasoning

Section 6 bars trial where the matter in issue is directly or substantially in issue in a previously instituted suit. The subject property is the same in both suits. However, ELC No. 17 of 2014 was partly heard when the application was filed and the Court could not tell whether it had been determined. It preferred to let this suit remain active, with the outcome of the Nairobi suit capable of being placed before the trial court.

p. 4
02

Consolidation with a partly-heard suit and transfer of a suit filed without pecuniary jurisdiction

Holding

Consolidation refused as it would delay the partly-heard ELC No. 17 of 2014 contrary to the overriding objective; the CMCC suit could not be transferred as it was filed in a court without pecuniary jurisdiction

Reasoning

The Court invoked the overriding objective under sections 1A and 1B of the Civil Procedure Act, holding that consolidating a 2017 suit not yet started with a 2014 suit already partly heard would occasion undue disadvantage and delay. On transfer, since the ELC Appeal found the lower court lacked pecuniary jurisdiction, a matter filed without jurisdiction cannot be transferred.

p. 4
03

Mandatory and temporary injunction following the eviction and demolition

Holding

The mandatory injunction to reinstate was refused as the demolished building means no restoration is possible, and damages would adequately compensate

Reasoning

Applying Kenya Breweries v Okeyo and Giella v Cassman Brown, the Court noted the Plaintiff acknowledged the building was demolished, so reinstatement orders would issue in vain. Whether any restraining court order existed required evidence at trial. Any quantifiable loss can be compensated by damages if the Defendant ultimately succeeds.

p. 5

Legal principles established

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  • Consolidation is meant to facilitate efficient and expeditious disposal and must not confer undue advantage or disadvantage on any party
  • A mandatory injunction on interlocutory application is not normally granted absent special circumstances
  • The Giella v Cassman Brown conditions govern temporary injunctions

Court orders

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  1. 1.The Notice of Motion dated 14th November 2018 is disallowed with costs being in the cause
  2. 2.The prayers in the Notice of Motion dated 8th March 2019 are disallowed entirely with costs being in the cause
  3. 3.The Defendant's Application dated 5th October 2020 is dismissed entirely with costs being in the cause
  4. 4.The parties to prepare the suit for hearing so that it can be determined at once and on merit

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (6)

  • Global Tours & Travel Ltd (Nairobi) HC Winding Up Cause No. 43 of 2000
  • Kenya Wildlife Service vs Mutembei
    (2019)
  • Law Society of Kenya Vs the Centre for Human Rights and Democracy
  • Kenya Breweries Ltd & Ano vs Washington O. Okeyo
    Civil Appeal No. 332 of 2000, 1EA 109
  • Giella vs Cassman Brown & Co. Ltd
    1973 EA 358
  • E.A Industries vs Trufoods
    (1972) EA 420
Jurisdiction invoked
Article 162(2)(b) of the Constitution / Environment and Land Court Act (ELC jurisdiction over land); applications under Section 6 of the Civil Procedure Act and Civil Procedure Rules on consolidation and transfer

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "John Mwangi Kamau v David Mwaura Nduruhu [2021] KEELC 4721 (KLR)", Case Analysis (2021). ELC No. 851 of 2017 (Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4721/eng@2021-01-14

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