Peroh v Peroh & 3 others (Environment & Land Case 89 of 2019) [2023] KEELC 31 (KLR)
The bottom line
#The Environment and Land Court refused to move a land dispute to the High Court, confirming only it can decide land occupation and rent matters in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over consolidation/stay sought by the defendants
The application failed because the reliefs in the plaint fall exclusively within the Environment and Land Court's jurisdiction, so neither consolidation with nor transfer to the High Court was possible
The court held that Article 162(2)(b) of the Constitution and section 13(2) of the Environment and Land Court Act vest exclusive jurisdiction over the reliefs sought in the ELC. The plaint's prayers disclosed a rent dispute, right to occupy land, release of a letter of allotment, an injunction and withdrawal of a caveat - none within the High Court's purview. The two courts do not exercise concurrent jurisdiction over these matters.
Risk of conflicting decisions from parallel suits
Any risk of conflicting decisions was attributable to the defendants, who filed a second suit while this suit was pending, contrary to order 4 rule 1(f) of the Civil Procedure Rules
The defendants themselves argued in grounds 5 and 6 that the issues in both suits were the same and could produce conflicting decisions. The court reasoned that the pending suit could resolve the dispute, so filing a second suit contravened the requirement in order 4 rule 1(f) that a plaint aver that no other pending suit exists between the same parties over the same subject matter.
Release of funds in the joint account
The plaintiff's undisputed contribution of Kshs 6,403,301.73 against a total project cost of Kshs 17,810,191.83 entitled him to 35.953% of the funds in the joint account, to be released immediately
Isaac Peroh admitted in his statement dated October 14, 2022 that the plaintiff contributed Kshs 6,403,301.73 as net capital towards the property. Calculated pro rata against the total project cost of Kshs 17,810,191.83, this equalled 35.953%. Since undisputed, the plaintiff would not receive less than this percentage of rent proceeds whatever the suit's outcome, justifying interim release.
Legal principles established
#- The Environment and Land Court has exclusive jurisdiction over reliefs concerning occupation of land, rent disputes, allotment letters, injunctions relating to land and withdrawal of caveats; the High Court cannot exercise that jurisdiction
- Under order 4 rule 1(f) of the Civil Procedure Rules a plaint must aver that there is no other pending suit between the same parties over the same subject matter
Court orders
#- 1.Notice of motion dated October 13, 2022 is dismissed
- 2.35.953% of the funds held in the joint account of the counsel for the parties relating to rent income from plot no B409 Ongata Rongai to be released to the plaintiff
- 3.The balance to remain in the account pending the hearing and determination of this suit
- 4.Costs in the cause
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya and section 13(2) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peroh v Peroh & 3 others (Environment & Land Case 89 of 2019) [2023] KEELC 31 (KLR)", Case Analysis (2023). Not stated in full in the judgment (Environment and Land Court suit; related suit High Court Commercial Case no E965 of 2021, Isaac Peroh and 3 others v Michael Peroh). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/31/eng@2023-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.