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ELCDismissedNot stated in the judgment (Miscellaneous Application, Environment and Land Court, Meru)· [2024] KEELC 4602 (KLR)

Nahashon Tharuiya M'Laibuta v Gideon Kiburi Kailemia & others (in re stay of execution and referral to Njuri Ncheke panel of elders)

Environment and Land Court
5 June 2024
CNC K Nzili
754 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost his bid to send a long-settled land dispute to Njuri Ncheke elders because you cannot dodge binding court decrees by demanding traditional dispute resolution.

What this practically means

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Executive summary

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By a notice of motion supported by an affidavit sworn on 19 January 2024, the applicant sought a stay of execution in this matter and referral of the dispute to the Njuri Ncheke panel of elders, arguing that the mechanism would amicably resolve a long-standing ownership dispute over L.R Tigania East Kiguchwa/1186 without prejudice to the other side. The respondents, in an affidavit sworn on 5 March 2024 by Gideon Kiburi Kailemia, opposed the application as incompetent and an abuse of process, noting that four courts, up to the Court of Appeal, had already determined ownership of the suit property, that stay applications had been made and determined, that there was no pending appeal, and that the decrees, including an eviction, should be enforced. They further argued that ADR should have been pursued before the first court's decision, that litigation must attain finality, and that the court was functus officio. The court acknowledged Article 159 of the Constitution and the judiciary's Alternative Justice Systems policy promoting ADR and TDRMs, and cited authorities recognizing the Njuri Ncheke among the Ameru. However, it held that the applicant was attempting to escape binding decrees and had not explained his inordinate delay, having known of the elders' mechanism throughout. Referring the respondents to ADR without consent and ignoring decrees of a superior court would be contrary to the rule of law, the Constitution and public policy. The application was dismissed with costs to the respondents.

Key legal issues

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Whether a post-judgment referral to traditional dispute resolution (Njuri Ncheke) can override executed decrees

Holding

The application fails; court decrees up to the Court of Appeal must be enforced and ADR cannot be imposed without consent

Reasoning

While Articles 159 and 60(g) promote ADR and TDRMs, and courts facilitate them, the applicant knew of the Njuri Ncheke mechanism all along and made no earlier move. Seeking referral only after decrees through multiple courts, with no pending appeal, amounts to attempting to escape binding decrees. Finality of litigation and the rule of law outweigh the late resort to ADR.

p. 3

Legal principles established

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  • A party cannot unilaterally subject another party to ADR/TDRM contrary to that party's wishes or in disregard of a court decree, particularly one from a superior court

Court orders

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  1. 1.The application is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 60(g)

Cases cited (7)

  • Kinyanjui & 97 others v Trustees
    (2023) KEELC 15966 (KLR)
  • Kamilinchui & 5 others v Kimbui & another
    (Misc. Application E007 of 2023) (2024) KEELC 53 (KLR)
  • Council of Governors v Senate & another
    (2004)
  • Mutanga Tea & Coffee Ltd v Shankara Ltd
    (2015) eKLR
  • Lubuaru M'Imanyara v Daniel Murungi
    (2013) eKLR
  • Joseph Kamau Gatimu v Peter Gatimu Kinyongo
    (2015) eKLR
  • Geoffrey M. Asango and others v AG
    (2018) eKLR
Jurisdiction invoked
Article 159 of the Constitution of Kenya (promotion of alternative and traditional dispute resolution)

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, "Nahashon Tharuiya M'Laibuta v Gideon Kiburi Kailemia & others (in re stay of execution and referral to Njuri Ncheke panel of elders)", Case Analysis (2024). Not stated in the judgment (Miscellaneous Application, Environment and Land Court, Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4602/eng@2024-06-05

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