Mbugua & 3 others v Turi Gardens Limited (Environment and Land Case Civil Suit E363 of 2024) [2025] KEELC 34 (KLR)
The bottom line
#The Environment and Land Court stopped parallel tribunal proceedings, extended time for a KES 2.5 million court deposit, and confirmed courts can adjust their own deadlines.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the supporting affidavit of Mr. Cecil Miller, advocate, is invalid and thus ought to be struck out or otherwise
- 2.Whether the Court is functus officio and thus devoid of jurisdiction to entertain the application dated 15 November 2024
- 3.Whether the suit filed before the BPRT, namely BPRT Cause No. E1165 of 2024, is barred by the doctrine of res-sub-judice and by extension Section 6 of the Civil Procedure Act
- 4.Whether the honourable court is seized of jurisdiction to extend time to furnish the deposit of Kes.2,500,000/= only by the Applicant or otherwise
Key legal issues
#Validity of an affidavit sworn by a party's advocate
The affidavit of Cecil Miller, advocate, was valid because its contents were within the deponent's knowledge and borne out by the court record; the bar applies only to contentious evidentiary matters.
The court distinguished authorities striking out advocates' affidavits, holding that the prohibition is not absolute. Under Order 19 Rule 3 of the Civil Procedure Rules, affidavits must be confined to facts within the deponent's knowledge, save for statements of information and belief in interlocutory proceedings. Since the deponent was averring to his own efforts to procure execution of account-opening documents and matters on the court record, the affidavit stood.
Functus officio and jurisdiction to entertain the application
The court was not functus officio; its prior rulings of 14 and 16 October 2024 disposing of injunction applications did not divest it of jurisdiction over the present application for enlargement of time.
The court held that the October 2024 rulings dealt with injunction applications mounted by the Respondents which were dismissed, and did not oust its jurisdiction. Jurisdiction to enlarge time was expressly conferred by Section 95 of the Civil Procedure Act read with Order 50 Rule 6 of the Civil Procedure Rules, hence functus officio was inapplicable.
Res sub-judice as against the BPRT proceedings
The BPRT Cause No. E1165 of 2024 was a parallel proceeding filed during the subsistence of the instant suit and offended the sub-judice rule; the later proceedings should be stayed.
Applying the Supreme Court's formulation in the KNCHR advisory opinion, the court found all elements established: more than one suit over the same subject matter, one instituted before the other, both pending before courts of competent jurisdiction, and the same parties. The Respondents did not controvert the filing of the parallel proceedings, and allowing both to proceed risked conflicting orders.
Extension of time and variation of the escrow deposit condition
Sufficient cause was shown for extension of time and variation; the Respondents' non-cooperation frustrated the opening of the escrow account, justifying deposit with the Deputy Registrar instead.
The Respondents did not answer the averments of non-cooperation. Citing Hadkinson v Hadkinson, the court held parties bound to comply with court directions unless stayed. The court exercised its discretion under Section 95 of the Civil Procedure Act, Sections 57 and 58 of the Interpretation and General Statute Act and Article 259(9) of the Constitution, guided by the Supreme Court's principles in County Executive of Kisumu, and extended time by 15 days while varying the deposit destination.
Legal principles established
#- An advocate may swear an affidavit in a matter in which he acts for a party provided the facts deposed to are within his own knowledge or borne out by the court record; the prohibition targets contentious evidentiary matters
- The functus officio doctrine does not bar a court from entertaining a subsequent application for extension of time under Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules
- Where parallel proceedings over the same subject matter between the same parties are filed during the subsistence of an earlier suit, the later proceedings offend the sub-judice rule and ought to be stayed
Court orders
#- 1.Order of stay of proceedings in respect of BPRT Cause No. E1165 of 2024 pending the hearing and determination of the instant matter
- 2.Order of stay of execution of the Orders of the Business Premises Rent Tribunal issued vide Cause Number E1165 of 2024 pending the hearing and determination of the instant suit
- 3.Extension/enlargement of the timelines granted vide the ruling of 14 October 2024 for furnishing the deposit of Kes.2,500,000/= and filing the requisite undertaking
- 4.Liberty granted to the Applicant to furnish the deposit and file the undertaking within 15 days from delivery of the ruling
- 5.Variation of the limb of the 14 October 2024 ruling directing deposit into an escrow account; deposit now to be made with the Deputy Registrar of the Environment and Land Court
- 6.Costs of the application to abide the outcome of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 95 of the Civil Procedure Act (Cap 22) read together with Order 50 Rule 6 of the Civil Procedure Rules; Article 259(9) of the Constitution 2010 on extension of time
Relief refused
#Deemed furnishing of the deposit and undertaking as provided in prayer (iv)
The court instead varied the escrow account direction and granted fresh 15-day timelines rather than deeming the deposit duly furnished
Costs
Costs of the Application shall abide the outcome of the suit
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
there be and is hereby granted an order of stay of proceedings in respect of BPRT Cause No. E1165 of 2024. To this end, the said proceedings be and are hereby stayed pending the hearing and determination of the instant matter.
the limb of the ruling of the court rendered on the 14th October 2024 which directed the deposit to be made in an escrow account in the names of the advocates for the respective parties be and is hereby varied.
Costs of the Application shall abide the outcome of the suit.
Pertinently, it is my finding and holding that the bar and prohibition of advocate swearing afidavits touches on and concerns deposition of contentious evidential matter[s].
the doctrine of functus oficio which has been highlighted and referenced by learned counsel for the Respondents is irrelevant and inapplicable in the matter beforehand.
Insofar as the subject proceedings are still pending before this court, the filing of the proceedings before the BPRT constitute a violation of the doctrine of re-sub-judice.
Issues in the judgment
#Internal inconsistency in the citation of the Civil Procedure Act chapter - the court refers to 'Section 6 of the Civil Procedure Act, Chapter 21 Laws of Kenya' in paragraph 66 but earlier cites 'Chapter 22 Laws of Kenya' in paragraph 57
Numbering error within the quoted Supreme Court extension-of-time principles (two items numbered '2')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbugua & 3 others v Turi Gardens Limited (Environment and Land Case Civil Suit E363 of 2024) [2025] KEELC 34 (KLR)", Case Analysis (2025). Notice of motion dated 15 November 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/34/eng@2025-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.