Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutEnvironment & Land Miscellaneous Case E020 of 2022· [2023] KEELC 17784 (KLR)

PMN v EKN

Environment and Land Court
31 May 2023
CYC. K. Yano
1,523 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court struck out a land injunction application because it was filed without a proper underlying suit and duplicated cases already in court.

What this practically means

#

Executive summary

#
The applicant, PMN, moved the Environment and Land Court at Chuka by notice of motion dated October 31, 2022, seeking injunctions restraining the respondent, EKN, from interfering with or developing three parcels of land (LR Nos. Karingani/Gitarene/3083, 4097 and 1152) pending hearing of Divorce Cause No. E017/2021 in the Chief Magistrate's Court at Chuka and Matrimonial Cause No. E001 of 2021 in the High Court at Chuka. He invoked sections 1A, 1B, 3A and 63(c)(e) of the Civil Procedure Act, Order 40 of the Civil Procedure Rules and article 40 of the Constitution, asserting sole ownership of the properties. The respondent opposed through a preliminary objection and replying affidavit, contending the properties were jointly acquired matrimonial property, that she lived on one parcel, and that injunction orders over the same properties had already been issued in the High Court matrimonial cause; she urged that the application be struck out to avoid conflicting orders. The court identified two issues: whether it should entertain the application and whether the orders should issue. It held the motion incompetent because it was a miscellaneous application seeking substantive relief without any underlying plaint, petition or originating summons, a defect article 159 and the overriding objective could not cure. It further held the matter sub-judice under section 6 of the Civil Procedure Act, the same parties and subject matter being pending before the two other courts, creating a risk of conflicting orders with the High Court, a court of the same status. The notice of motion was struck out with costs to the respondent.

Key legal issues

#
01

Whether a miscellaneous notice of motion not grounded on any suit is competent

Holding

It is incompetent; substantive orders cannot be sought through a motion made in a vacuum without a plaint, petition or originating summons

Reasoning

Section 2 of the Civil Procedure Act defines a suit; section 19 requires suits to be instituted as prescribed by rules; Order 3 rule 1(1) requires institution by plaint or other prescribed manner. The applicant's motion sought substantive injunctive relief without any underlying suit, so procedure was defective at the root and article 159 could not cure it.

p. 2
02

Whether the application was sub-judice the pending divorce and matrimonial causes

Holding

Yes; the same parties and subject matter were before the Chuka CM's Divorce Cause No. E17 of 2021 and Chuka High Court Matrimonial Cause No. E001 of 2022, so entertaining it risked conflicting orders

Reasoning

Section 6 of the Civil Procedure Act bars proceedings where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties. The court, citing Republic v Registrar of Societies, found the conditions for sub-judice satisfied and held that issuing orders could embarrass the court given the pending High Court cause of the same status.

p. 3

Legal principles established

#
  • A notice of motion seeking substantive relief must be anchored on a suit commenced by plaint, petition or originating summons; a miscellaneous application made in a vacuum is unsustainable and cannot be salvaged by article 159 of the Constitution or the overriding objective
  • Where the same parties litigate the same subject matter in previously instituted suits, a subsequent application is sub-judice and may be struck out to avoid conflicting orders between courts of concurrent jurisdiction

Court orders

#
  1. 1.The notice of motion dated October 31, 2022 is struck out
  2. 2.Costs of the application to the respondent

Authorities

#

Legislation

  • Civil Procedure Actsection 1A
  • Civil Procedure Actsection 1B
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 63(c)(e)
  • Civil Procedure Actsection 2
  • Civil Procedure Actsection 19
  • Civil Procedure Actsection 6
  • Civil Procedure RulesOrder 3 rule 1(1)
  • Civil Procedure RulesOrder 40
  • Constitution of Kenyaarticle 40
  • Constitution of Kenyaarticle 159

Cases cited (1)

  • Republic v Registrar of societies – Kenya & 2 others
    [2017] eKLR

    Conditions precedent for the sub-judice doctrine under section 6 of the Civil Procedure Act

Jurisdiction invoked
Sections 1A, 1B, 3A and 63(c)(e) of the Civil Procedure Act, Order 40 of the Civil Procedure Rules and article 40 of the Constitution (as invoked by the applicant)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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

Cite this brief

#

Cite this brief

Caselaw, "PMN v EKN", Case Analysis (2023). Environment & Land Miscellaneous Case E020 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17784/eng@2023-05-31

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