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ELCDismissedNot stated in the judgment (Notice of Motion dated 1st October 2021)· [2022] KEELC 2264 (KLR)

Kimuya v Mohammed & another (Environment & Land Case 144 of 2017) [2022] KEELC 2264 (KLR)

Environment and Land Court
15 June 2022
TMT. Murigi
2,131 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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This is an interlocutory ruling of the Environment and Land Court at Makindu/Makueni by Hon. T. Murigi, Judge, on a Notice of Motion dated 1st October 2021 in which the Plaintiff, the registered proprietor of land parcel Makindu/Township/921, sought temporary injunctions restraining the Defendants from entering upon, excavating, constructing on or otherwise interfering with the parcel, which she said bordered a Muslim cemetery and upon which the Respondents had allegedly encroached in August 2017 and begun erecting a perimeter wall. The Respondents opposed, contending the land was allocated to the Makindu Muslim community as a cemetery extension by allotment letter dated 14th October 1995, that the Applicant's lease was irregularly obtained without survey, and that the application duplicated an earlier application dated 1st September 2016 which had been dismissed for want of prosecution and never reinstated. The court framed two issues: whether the application was an abuse of process and whether the Applicant was entitled to the orders sought. Examining its own record, the court found the 2016 application had been dismissed for want of prosecution on 26th October 2016, that the suit (not the application) was the only thing reinstated in 2018, and that no application to reinstate the 2016 application existed. Applying Muchanga Investments Limited v Safaris Unlimited, it held that filing a fresh application with identical prayers was an abuse of process. The motion was dismissed with costs to the Respondents, and the parties were directed to comply with Order 11 within 30 days. The merits of the injunction and the ownership dispute remain for trial.

Key legal issues

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01

Whether the application dated 1st October 2021 was an abuse of the court process

Holding

It was an abuse of process; the Applicant sought the same injunction orders as her application dated 1st September 2016, which was dismissed for want of prosecution and was never reinstated

Reasoning

The court traced the record: the 2016 application was dismissed for want of prosecution on 26th October 2016; the suit itself was dismissed on 12th April 2018 and later reinstated by an unopposed application dated 7th May 2018. However, no application to reinstate the 2016 application was ever filed, and the Respondents' grounds of opposition related to the 2016 application itself. Filing a fresh application with identical prayers without reinstating the dismissed one was wanting in bona fides and oppressive.

p. 5
02

Whether the Applicant was entitled to a temporary injunction

Holding

No; having found the application an abuse of process, the court dismissed it in its entirety without reaching the Giella v Cassman Brown criteria

Reasoning

Although the parties canvassed the Giella v Cassman Brown principles (prima facie case, irreparable harm, balance of convenience) through rival submissions on ownership of Makindu/Township/921, the court disposed of the motion solely on the abuse-of-process ground, holding that an abusive application must fail in its entirety.

p. 5

Legal principles established

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  • A party who re-litigates identical interlocutory prayers in a fresh application after an earlier identical application was dismissed for want of prosecution, without first seeking its reinstatement, abuses the court process.

Court orders

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  1. 1.The application dated 1st October 2021 is dismissed with costs to the Respondents.
  2. 2.The parties are directed to comply with Order 11 of the Civil Procedure Rules within the next 30 days.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 40 Rules 1, 2, 3, 4
  • Civil Procedure RulesOrder 11

Cases cited (8)

  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Lucy Wangui Gachara v Minuudi Okemba Lore
    Civil Appeal No 4 of 2015 (2015) eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    C.A. No 39 of 2002 (2003) eKLR
  • Alwalaa Construction Company Ltd v Synergy Industrial Credit Limited & Another
    (2014) eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    (2018) eKLR
  • Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 Others
    (2016) eKLR
  • Nicholas Bongu Ngong'a v Joseph Hanington Oluoch
    Kisumu High Court Civil Case No 3 of 2007
  • Muchanga Investment Limited v Safaris Unlimited (Africa) Ltd & 2 Others
    Civil Appeal No 25 of 2002 (2009) eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rules 1, 2, 3 and 4 of the 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, "Kimuya v Mohammed & another (Environment & Land Case 144 of 2017) [2022] KEELC 2264 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated 1st October 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2264/eng@2022-06-15

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