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ELCDismissedELC Suit No. 9 of 2023 (Formerly Eldoret High Court Civil Suit No. 113 of 1987)· [2024] KEELC 3467 (KLR)

Gatatha Farmers Company Limited v Chemtingei & 3 others; Kaitet Tea Estates (1977) Limited & another (Interested Parties) (Environment & Land Case 9 of 2023) [2024] KEELC 3467 (KLR)

Environment and Land Court
29 April 2024
4,859 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By a Notice of Motion filed on 16/08/2023, Otieno Okiro, styled the 4th Respondent, instituted proceedings nominally on behalf of Gatatha Farmers Company Limited, seeking orders of certiorari to bar Kaitet Tea Estates (1977) Limited from evicting four families said to be beneficiaries of a 1957 gift inter vivos from the settler proprietor of Endebess Coffee Estates, to compel the Commissioner of Lands to exclude their occupied areas from the lease, and to nullify subsequent suits and judgments in Kitale High Court Civil Case No. 57 of 2011, Kitale ELC Case No. 36 of 2013 and various Eldoret appeals. Both the Plaintiff and the Interested Party filed preliminary objections arguing defective institution, absence of leave for judicial review orders, and the impropriety of certiorari against decisions of concurrent and superior courts. The court framed five issues and held that a suit cannot be instituted by way of such an application; that a party cannot sue himself through a company he claims to represent, an absurdity amounting to fraud and abuse of process; that certiorari cannot issue against courts of concurrent or higher jurisdiction under Article 165(6); and that the application was incompetent for want of prior leave under Order 53 Rule 1, a defect not curable under Article 159(2)(d). The application and purported suit were dismissed in their entirety, with costs awarded against Otieno Okiro personally.

Key legal issues

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01

Whether a suit can be instituted by way of an application

Holding

The heading and prayers of the application were incompetent as suits must be instituted by Plaint, Petition, Claim or Originating Summons under Section 19 of the Civil Procedure Act and Order 3 Rules 1 and 2; the court nevertheless declined to strike it on that technicality alone.

Reasoning

The court found the matter's title and prayers inconsistent: if it were the former suit, the application ought to have been filed in that suit; if a fresh suit, it offended Section 19 of the Civil Procedure Act requiring institution by Plaint, Petition or Claim. Noting Article 159(2)(d), the court declined dismissal purely on the defective heading but proceeded to examine the substantive objections.

p. 6
02

Whether a party can file an application on behalf of another party against himself

Holding

No; Otieno Okiro filed the application naming himself as 4th Respondent while suing as the company's agent, an absurdity amounting to abuse of process.

Reasoning

The 4th Defendant filed the entire application personally, naming himself as 4th Respondent, and signed the pleadings as an individual, thereby suing himself through the company he named as Plaintiff. The court held such institution contrary to reason and law, amounting to an intent to obtain orders by fraud and an abuse of court process. Each party should urge their own cause.

p. 6
03

Whether certiorari can issue against decisions of courts of concurrent or higher jurisdiction

Holding

No; a High Court judge cannot supervise or quash decisions of fellow judges of concurrent jurisdiction or superior courts, per Article 165(6).

Reasoning

Relying on the Court of Appeal in Bellevue Development Company Ltd and Kenya Hotel Properties Ltd, the court held that in a hierarchical system judges of concurrent jurisdiction lack supervisory powers over each other, and Article 165(6) limits supervision to subordinate courts. Judicial review targets administrative bodies, not judicial decisions of courts.

p. 7
04

Whether the application was incompetent for want of leave

Holding

Yes; judicial review orders require prior leave under Order 53 Rule 1, which was never sought, and that omission is not curable under Article 159(2)(d).

Reasoning

The court found the prayers were in substance judicial review orders of certiorari. Order 53 Rule 1 mandates ex parte leave before such applications. None was sought. The court also found the orders unattainable because they targeted judicial, not administrative, decisions, rendering the application a candidate for dismissal with costs to the successful parties.

p. 9

Legal principles established

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  • A court of concurrent jurisdiction cannot issue certiorari against orders of courts of equal or higher status; supervisory jurisdiction under Article 165(6) extends only over subordinate courts.
  • Judicial review addresses administrative decision-making, not the merits or decisions of other courts.
  • An application for mandamus, prohibition or certiorari must be preceded by leave of the Court under Order 53 Rule 1, and its absence is not a technicality curable under Article 159(2)(d).
  • A party cannot institute proceedings in the name of another party against himself; such an institution is an abuse of court process.

Court orders

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  1. 1.The entire Application and what is referred to as suit was dismissed
  2. 2.The Applicant, specifically the 4th Defendant, Otieno Okiro, to bear the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 19
  • Civil Procedure RulesOrder 3 Rules 1 and 2
  • Civil Procedure RulesOrder 53 Rule 1
  • Oaths and Statutory Declarations ActSection 6
  • Oaths and Statutory Declarations RulesRule 9
  • Fair Administrative Action Act
  • Constitution of Kenya 2010Article 159(2)(d)
  • Constitution of Kenya 2010Article 47(1)
  • Constitution of Kenya 2010Article 164(3)
  • Constitution of Kenya 2010Article 165(6)

Cases cited (8)

  • Mukhisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd (1969) EA 696
    (1969) EA 696
  • Bashir Haji Abdullahi v Adan Mohammed Noor & 3 others
    [2004] eKLR
  • SUSAN WAIRIMU NDIANGUI V PAULINE W. THUO & ANOTHER
    [2005] eKLR
  • Matindi & 3 others v The National Assembly of Kenya & 4 others; Controller of Budget & 50 others (Interested Parties) (Petition E080, E084 & E150 of 2023 (Consolidated)) [2023] KEHC 19534 (KLR)
    [2023] KEHC 19534 (KLR)
  • Bellevue Development Company Ltd v Francis Gikonyo & 7 others
    [2018] eKLR (Civil Appeal No 239 of 2017)
  • Kenya Hotel Properties Limited v Attorney General & 5 others
    [2020] eKLR
  • SGS Kenya Limited v Energy Regulatory Commission & 2 others SC Petition No 2 of 2019
    [2020] eKLR
  • Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR)
    [2023] KESC 40 (KLR)
Jurisdiction invoked
Article 159(2)(d) and Article 165 of the Constitution of Kenya 2010; Order 53 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gatatha Farmers Company Limited v Chemtingei & 3 others; Kaitet Tea Estates (1977) Limited & another (Interested Parties) (Environment & Land Case 9 of 2023) [2024] KEELC 3467 (KLR)", Case Analysis (2024). ELC Suit No. 9 of 2023 (Formerly Eldoret High Court Civil Suit No. 113 of 1987). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3467/eng@2024-04-29

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