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ELCOtherNot stated in judgment (Notice of Motion dated 24th February 2025)· [2025] KEELC 5461 (KLR)

Maru v Kios & 4 others (Environment and Land Miscellaneous Case E010 of 2025) [2025] KEELC 5461 (KLR)

Environment and Land Court
22 July 2025
GOG. M A Ongondo
1,479 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court at Kapsabet struck out a land dispute application because it bypassed proper procedure and duplicated a case already pending in a lower court.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kapsabet determines a preliminary objection dated 26th March 2025 raised by the respondents against a Notice of Motion dated 24th February 2025 in which the applicant sought permanent injunctions restraining the 1st to 5th respondents from trespassing on and utilising land parcels registered as Nandi/Legemet 293/300/301/302/303/304/305/306 and 307, and for enforcement of the orders by the OCS Ndurio Police Station, the Area Chief and the Sub County Administrator, Nandi South. The applicant alleged continued trespass and cultivation despite earlier orders made in March 2023 in Land Case No. 12 of 2019. The respondents, through Rotich, Langat & Partners Advocates, objected that the court lacked statutory jurisdiction because the suit was instituted by application rather than by plaint, petition or originating summons as required by sections 8 and 19 of the Civil Procedure Act and Order 3 Rule (i) and (ii) of the Civil Procedure Rules 2010; that the application was sub judice given the pending suit Kapsabet CMELC 12 of 2019 over the same properties and parties; and that it was frivolous, vexatious and an abuse of process. The applicant filed no submissions on the objection. Relying on Proto Energy Ltd, Kenya Ports Authority v Modern Holdings and the Goldenberg Commission case, the court found the objection merited, holding that the same matter should not proceed simultaneously before it and the Kapsabet Chief Magistrate's Court. The application dated 24th February 2025 was struck out with no orders as to costs.

Key legal issues

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01

Sub judice and improper institution of suit

Holding

The preliminary objection succeeded: the application was sub judice, given Kapsabet CMELC 12 of 2019 involving the same property and parties, and was improperly instituted by Notice of Motion without an underlying suit, and was accordingly struck out.

Reasoning

Sections 5, 6 and 8 of the Civil Procedure Act underpin the sub judice principle, while sections 8 and 19 and Order 3 Rule (i) and (ii) prescribe how suits may be instituted, namely by plaint, petition or originating summons. The dispute between the same parties over the same property was already pending before the Kapsabet Chief Magistrate's Environment and Land Court and fixed for mention on 13th August 2025. Relying on the Kenya Ports Authority and Goldenberg/Kilach decisions, the court held jurisdiction can be raised at any time and the same matter should not proceed simultaneously in two courts.

p. 4

Legal principles established

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  • Jurisdiction is a fundamental matter that may be raised at any stage of the proceedings
  • The same matter should not be heard simultaneously by two courts

Court orders

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  1. 1.The application dated 24th February 2025 is struck out with no orders as to costs
Jurisdiction invoked
Environment and Land Court Act; Civil Procedure Act (Cap 21) sections 5, 6, 8 and 19; Order 3 Rule (i) and (ii) Civil Procedure Rules 2010 considered on the preliminary objection

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, "Maru v Kios & 4 others (Environment and Land Miscellaneous Case E010 of 2025) [2025] KEELC 5461 (KLR)", Case Analysis (2025). Not stated in judgment (Notice of Motion dated 24th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5461/eng@2025-07-22

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