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ELCDismissed· [2024] KEELC 6975 (KLR)

Wendano Matuu Company Limited v Cyrus Mutunga Masaku & 7 Others

Environment and Land Court of Kenya
23 October 2024
COChristine Ochieng
2,086 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A company that tried to dress up a civil procedure dispute as a constitutional rights case lost and its director was ordered to personally pay the legal costs.

What this practically means

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Executive summary

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This was a constitutional petition filed by Wendano Matuu Company Limited at the Environment and Land Court, Machakos, seeking a declaration that the Chief Magistrate's Court (7th Respondent) could not guarantee a fair hearing under Article 50(1), an order under Article 165(6) transferring the records in Kangundo CMCC E01 of 2023 and Machakos CM ELC E065 of 2023 to the Machakos ELC, and a stay of the Machakos proceedings. The Petitioner alleged bias by a judicial officer. The 1st to 6th Respondents, in a Replying Affidavit sworn by Cyrus Mutunga Masaku, opposed the Petition, alleging the Petitioner was forum shopping, had obtained ex parte orders through misrepresentation, and had filed multiple suits over the same subject matter including a directorship dispute pending in the High Court at Machakos. The 7th and 8th Respondents relied on Grounds of Opposition, describing the Petition as defective and an abuse of process. The Petitioner never filed submissions. The court framed four issues: constitutional threshold, sub judice, violation of rights, and merit. Applying the Anarita Karimi Njeru principle as restated in Mumo Matemo, the court held the Petition lacked precision and raised only civil procedure issues, not constitutional ones. Applying Section 6 of the Civil Procedure Act, it found the Petition sub judice since it sought orders in pending matters. The Petition was dismissed with costs, with Stephen Ndambuki Muli personally directed to bear them.

Key legal issues

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01

Constitutional threshold

Holding

Petition failed the threshold; grievance was procedural, not constitutional

Reasoning

The Petitioner blamed the Chief Magistrate for setting aside interim injunctions but did not demonstrate bias. Its grievance lay within civil procedure rules, not constitutional provisions. Filing multiple suits over the same subject matter amounted to forum shopping and abuse of process, and no violation of rights was established.

p. 4
02

Sub judice

Holding

Petition was sub judice under Section 6 of the Civil Procedure Act

Reasoning

The relief sought touched on two pending matters - Kangundo CMCC E01 of 2023 and Machakos CM ELC E065 of 2023 - directly and substantially in issue in previously instituted proceedings between the same parties. The High Court at Machakos had already directed that related matters be mentioned together to deal with parallel injunctions.

p. 5

Legal principles established

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  • Constitutional petitions require reasonable precision in framing issues (Anarita Karimi Njeru principle)
  • Section 6 of the Civil Procedure Act bars proceedings where the matter is directly and substantially in issue in a previously instituted suit

Court orders

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  1. 1.The Petition is dismissed with costs
  2. 2.Stephen Ndambuki Muli to personally bear the costs

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 165(6)
  • Constitution of KenyaArticle 19(3)(a)
  • Civil Procedure ActSection 6
  • Civil Procedure RulesNot specified

Cases cited (6)

  • Mumo Matemo v Trusted Society of Human Rights Alliance
    Civil APP. 290/2012 (2013) eKLR
  • Kenya Bankers Association v Kenya Revenue Authority
    (2019) eKLR
  • Mbuvi Gedion Mike Sonko v Director of Public Prosecution & 4 Others
    (2021) eKLR
  • Ojiambo & Co. Advocates v Wamae Allen Advocates
    Civil Case No. E169 of 2019
  • Andrew Alex Wanyandeh v the Attorney General & Kenya Railway Corporation
    Nairobi Milimani HCCC No. 844 of 2005
  • Hassan Omar & Anor v Independent Electoral & Boundaries Commission & Others
    (2017) eKLR
Jurisdiction invoked
Article 165(6) of the Constitution of Kenya (supervisory jurisdiction) invoked by the Petitioner

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, "Wendano Matuu Company Limited v Cyrus Mutunga Masaku & 7 Others", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6975/eng@2024-10-23

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