Josephat Mose Mairongi v Chairman Land Disputes Tribunal Rachuonyo District & Jenipher Auma Awendo (Miscellaneous Application 7 of 2021) [2022] KEELC 1159 (KLR)
The bottom line
#The Environment and Land Court in Homa Bay struck out an eviction application because it was started with a Notice of Motion instead of a properly filed suit.
What this practically means
#Executive summary
#Key legal issues
#Whether a Notice of Motion can originate a suit seeking eviction and vacant possession
No - the application offended Order 3 Rule 1 of the Civil Procedure Rules, 2010 as a Notice of Motion cannot originate a suit; the omission was not a curable procedural technicality
The court applied the definition of 'suit' under section 2 of the Civil Procedure Act and held that the applicant had not taken the essential step commanded by Order 3 Rules 1 and 2 in instituting the application. Relying on Daniel Kimani Njihia and Simbiri Nan-Bell, it held the omission was not a mere procedural technicality to be cured under Article 159(2)(d), so the application had to fail.
Whether the judgment relied on by the applicant (JMM-2) entitled him to eviction
No - the prior judgment was not a declaration of the applicant's right to the disputed land
The court observed that the judgment annexed as JMM-2, arising from a claim for judicial review under Articles 23(3)(f) and 47 of the Constitution, did not declare the applicant's right to the disputed land, and therefore could not ground the principal orders of eviction and vacant possession sought in the application.
Exhaustion of alternative dispute resolution avenues
The parties were encouraged to attempt alternative dispute resolution under Article 159(2)(c) of the Constitution
The 2nd respondent contended the application breached the doctrine of exhaustion of dispute resolution avenues. The court, citing Article 159(2)(c), encouraged the parties to attempt alternative dispute resolution methods to resolve the land dispute, though the application was ultimately struck out on the commencement defect.
Legal principles established
#- Failure to institute a suit in the manner prescribed by Order 3 Rules 1 and 2 of the Civil Procedure Rules, 2010 is not a mere procedural technicality curable under Article 159(2)(d) of the Constitution and renders the application incompetent
Court orders
#- 1.The application dated 18th February 2021 and lodged in court on 22nd February 2021 is struck out with no orders as to costs
- Jurisdiction invoked
- Sections 3 and 19(1) and (2) of the Environment and Land Court Act; sections 1, 1A, 3 and 3A of the Civil Procedure Act (Chapter 21, Laws of Kenya)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josephat Mose Mairongi v Chairman Land Disputes Tribunal Rachuonyo District & Jenipher Auma Awendo (Miscellaneous Application 7 of 2021) [2022] KEELC 1159 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1159/eng@2022-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.