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ELCStruck OutEnvironment and Land Miscellaneous Application E016 of 2022· [2022] KEELC 12583 (KLR)

Muyesu v Biwott & another

Environment and Land Court
23 September 2022
2,917 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a landowner's application because he filed it the wrong way, showing procedure matters as much as winning.

What this practically means

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Executive summary

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The applicant, Joseph Ndayala Muyesu, filed a notice of motion dated March 10, 2022 seeking orders that the respondents vacate LR No UG/Illula Scheme/126 pursuant to a Court of Appeal judgment in Civil Appeal No 112 of 2018 delivered on July 9, 2021, which had declared him the lawful owner of the suit property. The respondents filed a preliminary objection contending that no suit was properly filed, that the miscellaneous application was unprocedurally commenced and fatally defective, and contravened Article 159 of the Constitution and sections 1A and 1B of the Civil Procedure Act. The respondents relied on Joseph Kibowen Chemjor v William C Kisera, arguing that actions must be commenced by plaint unless an alternative is prescribed, while the applicant relied on Mukisa Biscuits, Article 159(2)(d), sections 1A, 1B, 3 and 3A of the Civil Procedure Act, and the court's jurisdiction under Article 162(2)(b) and section 13 of the Environment and Land Court Act, citing Republic v Returning Officer of Kamukunji on the court's inherent power to fashion effective remedies. The court framed two issues: whether the objection raised pure points of law, and costs. Applying Mukisa Biscuits, it held the objection was a pure point of law. Applying section 19 of the Civil Procedure Act and Peter Kwema Kahoro, it found the applicant had not instituted the matter in a prescribed manner, so no suit existed on which the motion could rest; the defect was not curable under Article 159. The court upheld the preliminary objection, struck out the notice of motion with costs to the respondents under section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the preliminary objection raised pure points of law

Holding

It did; the objection concerned the mode of instituting proceedings, a question of law requiring no ascertainment of facts

Reasoning

The court applied the Mukisa Biscuits test, holding that whether a miscellaneous application can constitute a valid suit is a pure point of law. The objection attacked the competence of the proceedings themselves, not contested facts, and if upheld would dispose of the application without any factual inquiry or exercise of discretion.

p. 4
02

Whether the notice of motion dated March 10, 2022 amounted to a valid suit

Holding

It did not; the applicant failed to institute the suit in the manner prescribed by rules, so no suit existed on which the motion could be based

Reasoning

Section 2 of the Civil Procedure Act defines a suit as civil proceedings commenced in a prescribed manner, and section 19 requires suits to be instituted as prescribed by rules. The applicant sought specific performance but did not comply with these provisions. Following Peter Kwema Kahoro, such a defectually instituted matter is liable to be struck out, and the defect is substantive, not curable under Article 159(2)(d).

p. 5
03

Proper forum for executing the Court of Appeal orders

Holding

Execution should have been sought in the Court of Appeal file where the orders were made, or in this court's file from which the appeal emanated

Reasoning

The court observed that a party seeking to execute appellate orders must use the file where the orders were made or the file from which the appeal originated. Commencing a fresh miscellaneous application is not envisaged by law, and the court lacks authority to adjudicate an application not properly brought before it.

p. 5

Legal principles established

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  • Every suit must be instituted in the manner prescribed by rules under section 19 of the Civil Procedure Act; a notice of motion in a miscellaneous application cannot found a suit where no action exists
  • A preliminary objection must raise a pure point of law, argued on the assumption that all facts pleaded are correct

Court orders

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  1. 1.The respondents' preliminary objection dated April 22, 2022 is upheld
  2. 2.The applicant's Notice of Motion dated March 10, 2022 and filed on March 15, 2022 is struck out with costs

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159 (including 159(2)(d))
  • Constitution of Kenya 2010Article 162(2)(b)
  • Constitution of Kenya 2010Article 50
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 2, 3, 3A, 19, 27
  • Civil Procedure Rules, 2010Order 51 rule 1
  • Environment and Land Court ActSection 13

Cases cited (7)

  • Joseph Kibowen Chemjor v William C Kisera
    (2013) eKLR

    Definition of 'suit'; actions such as removal of cautions must be commenced by plaint unless an alternative is prescribed

  • Safaricom Limited vs OceanView Beach Hotel Limited and 2 others

    Overriding objective applies case by case; parties should not misuse court process under Article 159

  • Shah v Mbogo
    (1967) EA 116

    Discretion of the court; no excusable error or mistake shown

  • Fredrick Mutonyi Gitonga v Isaiah Mutonyi Wambugu & Another
    (2015) eKLR

    Support for striking out defectively commenced proceedings

  • Mukisa Biscuits Manufacturing Ltd vs West End Distributors
    (1969) EA 697

    Definition and limits of a preliminary objection - pure point of law

  • Republic v Returning Officer of Kamukunji Constituency & The Electoral Commission of Kenya
    HCMCA No 13 of 2008

    Court's inherent jurisdiction under section 3A to adopt procedures giving meaningful relief where a lacuna exists

  • Peter Kwema Kahoro Vs Benson Maina Githethuki
    [2005] eKLR

    Proceedings instituted by chamber summons in a miscellaneous application are incompetent and struck out

Jurisdiction invoked
Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act (invoked by applicant); court found no properly instituted suit before it

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, "Muyesu v Biwott & another", Case Analysis (2022). Environment and Land Miscellaneous Application E016 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12583/eng@2022-09-23

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