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ELCDismissedEnvironment and Land Case Civil Suit 808 of 2012· [2023] KEELC 16395 (KLR)

Gikunji & 3 others v Nyaga & 3 others; Wahome & 16 others (Objector)

Environment and Land Court
16 March 2023
JMJO MBOYA
8,483 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed land objectors' bid to stop execution because they skipped a mandatory procedural step and proved no ownership.

What this practically means

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Executive summary

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This ruling by JO Mboya J of the Environment and Land Court at Nairobi disposed of two applications dated February 6, 2023 and February 17, 2023 mounted by objectors in execution proceedings arising from a judgment of February 8, 2019 which declared the 1st and 2nd Defendants owners of Plots 8 and 13 Kahawa West Phase II. The objectors sought temporary injunctions, stay of execution and declarations that they were legal owners of sub-plots allocated to them by the 4th Defendant. The 1st and 2nd Defendants opposed on law, contending the proceedings were incompetent for want of a notice of objection under Order 22 Rules 51 and 52, defective affidavits for want of written authority under Order 1 Rule 13(2), unsupported by proof of ownership, and an abuse of process given parallel suits (ELC E029, E063 and E229 of 2023). Framing three issues, the court held: the notice of objection is the legal foundation of objection proceedings and its absence renders them stillborn; Article 159(2)(d) does not excuse deliberate non-compliance, procedure being a handmaiden of justice; objectors without affidavits or written authority could not prosecute the claim; the objectors failed to discharge the burden of proving allocation, a police abstract being no substitute, and letters of allotment do not constitute title; and the unimpeached judgment in rem of February 8, 2019 could not be impeached by an ancillary declaration. The multiplicity of proceedings also constituted abuse of due process. The objection proceedings were dismissed with costs to the 1st and 2nd Defendants/Respondents.

Key legal issues

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01

Competency of objection proceedings commenced without a notice of objection under Order 22 Rule 51(3)

Holding

The proceedings are invalid and stillborn; the requirement to lodge and serve notice of objection is mandatory

Reasoning

The court reproduced Order 22 Rules 51 and 52 and held that the notice of objection forms the legal foundation upon which objection proceedings are anchored. The Objectors conceded they never lodged one. Rejecting the plea that the omission was a curable procedural lapse under Article 159(2)(d), the court relied on Mumo Matemu and Moses Mwicigi to hold procedure is not a mere technicality, and declared the proceedings premature, misconceived, invalid and bad in law.

p. 12
02

Competency of joint objection proceedings for want of supporting affidavits and written authority under Order 1 Rule 13(2)

Holding

Proceedings by objectors who neither swore the affidavit nor filed written authority are incompetent

Reasoning

Where several claimants mount a joint claim, all must swear the requisite affidavit or authorise one or more of their number in writing, signed and filed. No such authority was executed by the 3rd Objector on the February 17, 2023 application or the 1st Objector on the February 6, 2023 application. The net effect was that the proceedings by the unnamed objectors were incompetent, misconceived and legally untenable.

p. 10
03

Whether the Objectors proved ownership of the plots

Holding

They failed to discharge the burden of proof; no credible evidence of allocation was tendered

Reasoning

Claiming allocation by the 4th Defendant, the Objectors explained the absence of allotment letters by alleging they had handed originals to one Paul Nganga, obtaining only police abstracts. The court held a police abstract is merely a precursor to obtaining certified duplicates, which were never procured. Section 107, 108 and 109 of the Evidence Act placed the burden on the Objectors, which they failed to discharge; further, letters of allotment do not per se constitute title.

p. 15
04

Whether the court could declare the Objectors owners of sub-plots within plots already adjudged to belong to the 1st and 2nd Defendants

Holding

It could not; the unimpeached judgment of February 8, 2019 is a judgment in rem binding against the whole world

Reasoning

The Objectors expressly declined to challenge or re-open the judgment of February 8, 2019 which declared the 1st and 2nd Defendants owners of Plots 8 and 13 Kahawa West Phase II. That judgment, neither appealed against nor impeached, is a judgment in rem. It would therefore be absurd for the court to declare the Objectors lawful owners of sub-plots within the main plots while that judgment stands.

p. 16
05

Whether the objection proceedings constitute an abuse of the due process of the court

Holding

Yes; the multi-pronged filing of objection proceedings alongside multiple similar suits amounts to abuse

Reasoning

The Objectors had also filed ELC E029 of 2023 and ELC E063 of 2023, and another set of objectors had filed ELC E229 of 2023, seeking similar or substantially similar reliefs. Adopting Muchanga Investments and Satya Bhama Gandhi, the court held that instituting a multiplicity of actions on the same subject matter and forum-shopping constitute abuse of judicial process, and the objection proceedings fell on this head as well.

p. 17

Legal principles established

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  • A notice of objection under Order 22 Rule 51(1) is the legal foundation of objection proceedings; without it the proceedings are stillborn
  • Where joint claimants file a claim, all must swear the supporting affidavit or execute and file a written authority under Order 1 Rule 13(2); failure renders the proceedings incompetent
  • Compliance with rules of procedure is not antithetical to Article 159(2)(d) of the Constitution; procedure is a handmaiden of justice
  • Letters of allotment per se do not constitute title to land; title arises only after fulfilment of conditions in the letter and issuance of a title document
  • Instituting a multiplicity of actions on the same subject matter between the same parties amounts to abuse of judicial process

Court orders

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  1. 1.The Objection Proceedings vide applications dated February 6, 2023 and February 17, 2023 are Dismissed with costs to the 1st and 2nd Defendants/Respondents.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure Rules, 2010Order 22 Rules 51, 51(1), 51(3), 52
  • Civil Procedure Rules, 2010Order 1 Rules 13(1), 13(2)
  • Evidence Act, Chapter 80 Laws of KenyaSections 106B, 107, 108, 109
  • Civil Procedure Act (Cap 21)Sections 1A and 1B
  • Appellate Jurisdiction Act (Cap 9)Sections 3A and 3B
  • Oaths and Statutory Declarations RulesRule 9

Cases cited (9)

  • Mumo Matemu v Trusted Society Of Human Rights Alliance & 5 Others
    Civil Appeal No 290 of 2012, (2013) eKLR

    Compliance with rules of procedure is not antithetical to Article 159; procedure is a handmaiden of just determination of cases

  • Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others
    [2016] eKLR

    Procedure is the handmaiden of justice; courts may declare pleadings incompetent where procedural requirements are overlooked

  • Daniel Toroitich Arap Moi versus Mwangi Stephen Muriithi & another
    [2014] eKLR

    A party who pleads facts must lay evidence to support them; burden of proof under Section 108 of the Evidence Act

  • Agnes Nyambura Munga (suing as the Executrix of the Estate of the late William Earl Nelson) versus Lita Violet Shepard
    [2018] eKLR

    Standard of proof on a balance of probabilities as explained in Miller v Minister of Pensions

  • Dr Samson Gwer & 5 others versus Kenya Medical Research Institute (KEMRI) & 3 Others
    [2014] eKLR

    The party making an averment bears the burden of establishing it; Sections 108 and 109 of the Evidence Act

  • Raila Odinga & Others v Independent Electoral & Boundaries Commission & Others
    Petition No 5 of 2013

    A petitioner must discharge the initial burden of proof before the burden shifts to the respondent

  • Joseph N K Arap Ngok versus Moijo Ole Keiwa & 4 Others
    (1997) eKLR

    Title to land arises only after issuance of letter of allotment, fulfilment of its conditions and issuance of a title document

  • Muchanga Investments Ltd Versus Safaris Unlimited (africa) Ltd & 2 others
    [2009] eKLR

    What constitutes abuse of judicial process, including instituting a multiplicity of actions on the same subject matter

  • Satya Bhama Gandhi versus Director of Public Prosecutions & 3 others
    [2018] eKLR

    Circumstances in which employment of judicial process amounts to abuse of court process, including forum-shopping

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court in objection proceedings in execution (Order 22, Civil Procedure Rules, 2010)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gikunji & 3 others v Nyaga & 3 others; Wahome & 16 others (Objector)", Case Analysis (2023). Environment and Land Case Civil Suit 808 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16395/eng@2023-03-16

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