Five Eleven Traders and Auctioneers through its owners Crispus Waithaka v Muses & 2 others
The bottom line
#Kenya's Environment and Land Court restored the status quo on a disputed Diani property but refused to order criminal investigations or rebuilding of demolished villas.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to direct criminal investigation of named individuals
Prayer 9 failed; although the ELC has jurisdiction over civil and criminal processes relating to land, the applicant placed no material showing imminent violation of constitutional rights
The Court analysed Article 162(2)(b) and Section 13 of the ELC Act, concluding the jurisdiction to issue preservation orders was not restricted to civil processes. However, the application was not a petition alleging apprehended violation of Bill of Rights, and no material suggested imminent criminal or civil threat to the applicant's rights relating to the suit property.
Restoration of status quo ante / rebuilding demolished villas
Prayer 10 failed; a mandatory injunction cannot be granted against the decisions of superior courts, and the demolition order came from a competent superior jurisdiction
Applying the principles in Nandan Pictures, Shepherd Homes and Lucy Wangui Gachara, mandatory injunctions are granted only in the clearest of cases and to restore the status quo, not to establish a new state of things. The Court held it could not overturn a final decision of the Court of Appeal, and the demolition was executed under orders from a superior court.
Nature of a miscellaneous application and functus officio
A miscellaneous application is not a suit; once its purpose is achieved it is spent and the court becomes functus officio
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 is not an originating process and a miscellaneous application cannot survive as a suit. Having granted the orders sought, the Court became functus officio, yet granted security on humanitarian grounds.
Alternative Judicial System referral
The Court directed the parties to explore AJS under Article 159(2)(c) and directed the Deputy Registrar to organise an AJS session in Kwale within 30 days
The Court embraced AJS as anchored in Article 159(2)(c) and Section 20 of the ELC Act, viewing it as cost-effective and suited to resolving the protracted boundary dispute, suggesting inter alia an offer to purchase the disputed area at market price.
Legal principles established
#- The Environment and Land Court has jurisdiction under Section 13 of the ELC Act to issue orders relating to both civil and criminal processes, limited to matters relating to environment and land
- A suit cannot be instituted by way of a Notice of Motion; a miscellaneous application is not a suit and dies once its purpose is achieved
- A court is functus officio when it has performed all its duties in a particular case
- Mandatory injunctions on interlocutory application are granted only in the clearest of cases and to restore, not establish, a new state of things
Court orders
#- 1.Notice of Motion dated 21st February 2022 partially allowed - order restoring the status quo ante immediately prior to the order issued on 17th February 2022 pending the outcome of ELC No. 30 of 2014
- 2.Order for security to the 2nd Respondent issued
- 3.All future applications touching on execution of the decree dated 13th October 2014 to be filed in the substantive file, Mombasa ELC No. 30 of 2014
- 4.With the exception of ELC (Mombasa) No. 3 (functus officio), any other ELC Courts at Mombasa at liberty to hear and determine matters pertaining to execution of ELC (Mombasa) No. 30 of 2014
- 5.Parties advised and encouraged to embrace Alternative Judicial System (AJS) under Article 159(2)(c)
- 6.Deputy Registrar, ELC directed to organise an AJS session in Kwale within thirty (30) days with the AJS Report to be filed in Court thereafter
- 7.Each party to bear their own costs
- 8.Parties have a right of appeal if aggrieved
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Sections 3, 4, 13 and 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 (2023). Environment and Land Miscellaneous Application E006 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19316/eng@2023-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.