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ELCStruck OutNot stated in judgment (application dated 4th May 2025)

City Manager, County Government of Kenya & 3 others v Manyala & 3 others (Suing as Members of Kibuye Traders) (Environment and Land Miscellaneous Application E001 of 2025) [2025] KEELC 3854 (KLR)

Environment and Land Court of Kenya
15 May 2025
569 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out an attempt to reverse conservatory orders through a fresh application, insisting such requests must be filed in the original case.

What this practically means

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Executive summary

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The applicant filed a Notice of Motion dated 4th May 2025 seeking to set aside, vary and/or discharge conservatory orders issued on 2nd May 2025 in Kisumu Environment and Land Court Petition E002 of 2025, and further sought an order closing Kibuye Market. The respondents filed a Notice of Preliminary Objection dated 8th May 2025 arguing that the application was bad in law, amounted to asking the court to sit on appeal over its own orders made after a proper hearing, that substantive orders cannot be reviewed through a Miscellaneous application, and that the application was an abuse of process brought to derail the petition. By consent, the preliminary objection was given precedence and argued orally on 9th May 2025. The respondents' counsel submitted that the orders were made in an existing petition in the presence of the applicant's counsel and that established procedures must be followed; the applicant's counsel relied on Article 159(2) of the Constitution and the case of Raila Odinga v IEBC, explaining that time constraints prompted the filing of a fresh Miscellaneous application. The court held that no dispute existed that a petition between the same parties over the same subject matter existed, and that the orders sought to be reviewed were issued in that petition. The applicant's urgency explanation was found unsatisfactory, since instituting a new matter would take more time than filing within the existing one. The court held that entertaining the application in a separate cause would be un-procedural and would invite chaos and confusion in the administration of justice. The preliminary objection was upheld, the Miscellaneous Application was struck out, and no order was made as to costs.

Questions the Court framed

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

  1. 1.Whether the Notice of Preliminary Objection dated 8th May 2025 should be upheld
  2. 2.Whether a Miscellaneous application is a proper vehicle to set aside conservatory orders issued in a different cause (ELC Petition E002 of 2025)

Key legal issues

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01

Whether conservatory orders issued in an existing petition may be set aside through a fresh Miscellaneous application

Holding

No. Such an application must be brought in the existing cause; a Miscellaneous application for that purpose is un-procedural and improperly before the court.

Reasoning

The court found it undisputed that a petition between the same parties over the same subject matter existed and that the orders sought to be reviewed were issued in that petition. The applicant's excuse that time was short was rejected because instituting a new matter takes more time than filing within the existing matter. Entertaining the application in a separate cause would invite chaos in the administration of justice.

p. 2
02

Whether the applicant's explanation (urgency/time constraints) justified bypassing prescribed procedures

Holding

The explanation was unsatisfactory; urgency does not excuse non-compliance with established procedures.

Reasoning

The applicant claimed time was not on its side, but the court reasoned that filing in the existing petition would have taken less time than instituting a new miscellaneous matter. Article 159(2) of the Constitution, invoked by the applicant, does not provide a remedy for unfounded applications or a licence to ignore procedure.

p. 2

Legal principles established

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  • Parties seeking relief from the court must do so within established rules and procedures; an application to review orders issued in one cause cannot be entertained in a different cause.

Court orders

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  1. 1.Upheld the Notice of Preliminary Objection dated 8th May 2025
  2. 2.Struck out the applicant's Miscellaneous Application (Notice of Motion dated 4th May 2025)
  3. 3.Made no order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Environment and Land Court jurisdiction (Article 162(2) of the Constitution as invoked in practice); the court did not expressly cite a jurisdictional provision

Relief refused

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Setting aside, varying and/or discharging the conservatory orders issued on 2/5/2025 in Kisumu ELC Petition E002 of 2025

The application was improperly filed as a Miscellaneous application instead of in the existing petition; it was struck out following the upheld preliminary objection

p. 2

Order closing Kibuye Market

Sought in the struck-out application; not granted

Costs

No order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

it is paramount that parties approaching the court for relief must do so within the established rules and procedures. To operate otherwise would be to invite chaos and confusion in the administration of justice.
p. 2Adherence to prescribed procedure
It will be totally un-procedural for this court to entertain in this cause an application seeking to review orders issued in a difierent cause.
p. 2Improper vehicle for review of orders in another cause
I hereby uphold the preliminary objection and strike out the Miscellaneous Application. No order as to costs.
p. 2Final orders/disposition

Issues in the judgment

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minor

The judgment does not state the case number of the Miscellaneous Application itself; only the application date and the related petition number (ELC E002 of 2025) are given.

minor

The judgment is described as a 'RULING' rather than a judgment, and the parties are not individually named.

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, "City Manager, County Government of Kenya & 3 others v Manyala & 3 others (Suing as Members of Kibuye Traders) (Environment and Land Miscellaneous Application E001 of 2025) [2025] KEELC 3854 (KLR)", Case Analysis (2025). Not stated in judgment (application dated 4th May 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3854/eng@2025-05-15

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