Five Eleven Traders and Auctioneers (through its owners Crispus Waithaka) v Muses & 2 others
The bottom line
#Kenya's Environment and Land Court ruled that most claims in a land dispute were already settled, and future execution matters must go through the original case file.
What this practically means
#Executive summary
#Key legal issues
#Existence of conflicting orders over the same subject matter
The court found no conflicting orders; the position under the 2014 judgment, the Court of Appeal judgment and the Land Registrar's report is that plot No 48 encroached onto plot No 50, and that position stands until altered by a competent legal process.
The court traced the litigation trajectory: the 2014 decree, the Court of Appeal judgment of April 24, 2020 finding demolition premature, the Land Registrar's report of July 2, 2021, the striking out of the Kwale suit under section 34 of the Civil Procedure Act, and Matheka J's dismissal of the execution application. It concluded no conflicting orders existed and the encroachment finding remains unaltered.
Tenability of the 2nd respondent's notice of motion and entitlement to relief
Most prayers were spent or overtaken by events; prayers 9, 10 and 11 were deferred to the substantive suit; the ex parte orders of February 17, 2022 were not discharged as fraud was unproved.
The court exercised its inherent powers but found prayer 3 overtaken by the striking out of the Kwale suit, prayer 4 barred by Munyao J's directions, prayer 6 unsupported by evidence, prayer 8 unproved on fraud and barred by functus officio, and prayers 10 and 11 improperly sought by application and better pursued in the substantive suit.
Whether a miscellaneous application is a stand-alone suit and the court's continuing jurisdiction
A miscellaneous application is not a suit; once its relief is obtained it is spent and the court becomes functus officio, leaving no mandate to continue dealing with the matter.
Relying on section 2 and section 19 of the Civil Procedure Act, order 3 rule 1 of the Civil Procedure Rules and Proto Energy Limited, the court held that a notice of motion cannot institute a suit. Having granted the orders sought on February 17, 2022, the miscellaneous application was spent like a used cartridge, rendering the court functus officio, subject only to section 99 corrections of clerical errors.
Costs
Each party to bear their own costs as the outcome was a fair win-win on a balance scale of justice.
Applying section 27(1) of the Civil Procedure Act and the dictum in Reids Heweet & Company and Myres v Defries that costs follow the event distributively, the court found no single party had wholly succeeded and therefore made no adverse costs order.
Legal principles established
#- A miscellaneous application is not a suit in the strict sense of the law; a suit can only be instituted by plaint, petition or originating summons.
- Once a miscellaneous application has served its purpose it is spent and the court becomes functus officio, though it may correct clerical errors under section 99 of the Civil Procedure Act.
- All questions relating to execution, discharge or satisfaction of a decree must be determined by the court executing the decree, not by a separate suit.
- A police officer who acts in obedience to a warrant issued by a judge or magistrate is not liable for the acts done under it.
- Status quo orders are case-management tools to preserve the subject matter and must not create conflict or unequal prejudice.
Court orders
#- 1.The notice of motion application dated February 21, 2022 allowed, with prayers 9, 10 and 11 deferred to ELC No 1, Mombasa, and prayers 1-8 and 12 declared spent/overtaken by events.
- 2.All or any future applications touching on execution of the decree dated October 13, 2014 and the subject property must be filed in the substantive file, Mombasa ELC No 30 of 2014.
- 3.With the exception of ELC (Mombasa) No 3, which has become functus officio, any other ELC courts at Mombasa are at liberty to hear and determine matters pertaining to execution of ELC (Mombasa) No 30 of 2014.
- 4.Any party is at liberty to seek interpretation of the judgment dated April 24, 2020 from the Court of Appeal.
- 5.Matter to be mentioned before ELC Mombasa No 1 - Justice SM Kibunja (presiding judge) on November 2, 2022 for further directions on prayers 9, 10 and 11 and preparation of a final legal opinion to the Court of Appeal.
- 6.Parties have a right of appeal if aggrieved.
- 7.Each party to bear their costs.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010; sections 3(2), (3), 13 & 19 of the Environment and Land Court Act, No 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Five Eleven Traders and Auctioneers (through its owners Crispus Waithaka) v Muses & 2 others", Case Analysis (2022). Environment and Land Miscellaneous Application E006 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14428/eng@2022-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.