Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNotice of motion dated 15 November 2024

Mbugua & 3 others v Turi Gardens Limited (Environment and Land Case Civil Suit E363 of 2024) [2025] KEELC 34 (KLR)

Environment and Land Court
16 January 2025
5,537 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

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

#
The Defendant/Applicant moved the Environment and Land Court by notice of motion dated 15 November 2024 seeking stay of proceedings in BPRT Cause No. E1165 of 2024, vacation of interim orders issued by the tribunal on 29 November 2024, extension of time to furnish a deposit of Kes.2,500,000/= and an undertaking directed by Oguttu Mboya J's ruling of 14 October 2024, and a variation of the deposit terms so the money be lodged in court. The Respondents filed a preliminary objection and replying affidavit contending the court was functus officio, lacked jurisdiction, that injunctive relief required a substantive suit, and that the supporting affidavit sworn by Cecil Miller, the Applicant's advocate, was incompetent. The court framed four issues. On the affidavit, it held the bar against advocates swearing affidavits concerns contentious evidentiary matters only; since the depositions were within the deponent's knowledge and borne out by the record, the affidavit was valid. On functus officio, the court held the October 2024 rulings on injunction applications did not divest it of jurisdiction, Section 95 of the Civil Procedure Act and Order 50 Rule 6 conferring power to enlarge time. On res sub-judice, applying the Supreme Court's KNCHR advisory opinion, it found the BPRT proceedings were parallel proceedings offending Section 6 of the Civil Procedure Act and warranted a stay. On extension of time, the Respondents' non-cooperation in opening the escrow account constituted sufficient cause for extension and variation. The application was allowed: the BPRT proceedings and their orders were stayed, time was extended by 15 days, the deposit is now to be made with the Deputy Registrar, and costs abide the outcome of the suit.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the supporting affidavit of Mr. Cecil Miller, advocate, is invalid and thus ought to be struck out or otherwise
  2. 2.Whether the Court is functus officio and thus devoid of jurisdiction to entertain the application dated 15 November 2024
  3. 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. 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

#
01

Validity of an affidavit sworn by a party's advocate

Holding

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.

Reasoning

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.

p. 7
02

Functus officio and jurisdiction to entertain the application

Holding

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.

Reasoning

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.

p. 8
03

Res sub-judice as against the BPRT proceedings

Holding

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.

Reasoning

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.

p. 9
04

Extension of time and variation of the escrow deposit condition

Holding

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.

Reasoning

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.

p. 10

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. 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. 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. 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. 4.Liberty granted to the Applicant to furnish the deposit and file the undertaking within 15 days from delivery of the ruling
  5. 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. 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.

majority

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

p. 11

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.
p. 11stay of tribunal proceedings - final orders
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.
p. 11variation of deposit terms - final orders
Costs of the Application shall abide the outcome of the suit.
p. 11costs - final orders
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].
p. 7advocate-sworn affidavits
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.
p. 8functus officio
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.
p. 9res sub-judice

Issues in the judgment

#
minor

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

minor

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.