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ELCDismissedNotice of Motion dated 26th March 2025 (Kajiado)· [2025] KEELC 6932 (KLR)

Toimasi (Deceased) v Nchiroine & 3 others (Miscellaneous Application E024 of 2025) [2025] KEELC 6932 (KLR)

Environment and Land Court
9 October 2025
MMM.D. Mwangi
2,487 words in judgment
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The bottom line

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The Environment and Land Court in Kajiado dismissed a land application as an abuse of process because a similar case was already pending elsewhere.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kajiado (M.D. Mwangi J) determines a Notice of Motion dated 26th March 2025 in which the Applicant, Toimasi Lepapa Adrian, a beneficiary of the estate of the late Paul Tinteyo Ole Toimasi, sought adoption of reports by the District Land Surveyor and District Land Registrar dated 3rd March 2025 and an order allowing the demarcation of land parcels Kajiado/Dalalekutuk/3395 and Kajiado/Dalalekutuk/23 pursuant to a court decree of 26th August 2021 restraining demarcation of an access road pending boundary ascertainment. The 1st Respondent opposed the application, arguing that the supporting affidavit's annexures did not comply with Rule 9 of the Oaths and Statutory Declarations Rules, that the reports were suspicious because they referenced her deceased neighbour, and that the 3rd March 2025 report merely replicated the report of 16th August 2019 which had been quashed in pending Miscellaneous Judicial Review Application No. 7 of 2020, wherein compliance proceedings remain before L. Komingoi J. The Court first held that the annexure defects were purely technical and caused no prejudice, applying Article 159(2)(d). However, it found the application sub judice under Section 6 of the Civil Procedure Act since the report sought to be adopted arose from directions in the pending judicial review matter, risking conflicting decisions by concurrent courts. The Court held that a report pursuant to a decree must be adopted by the court that issued the decree, not in a new matter, and found the motion mischievous and an abuse of process. The application was dismissed with costs.

Key legal issues

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01

Compliance with Rule 9 of the Oaths and Statutory Declarations Rules regarding marking of exhibits

Holding

The defects, if any, are technical and caused no prejudice; the annexures were considered

Reasoning

The Court held that while exhibits must be sealed and marked under Rule 9, courts require only substantial compliance. The reports were annexed, stamped, accessible on the electronic system, and the 1st Respondent had responded to their contents, so no prejudice arose. Guided by Article 159(2)(d), the annexures were considered.

p. 4
02

Sub judice / lis pendens under Section 6 of the Civil Procedure Act

Holding

The application is sub judice given the pending Miscellaneous Judicial Review Application No. 7 of 2020

Reasoning

The judicial review application remains pending and it was in that matter that the court directed the surveyors to investigate and file reports. Adopting the report in this application would pre-empt those proceedings before a court of concurrent jurisdiction and risk conflicting outcomes; all issues on the reports must be canvassed in the court seized of the matter.

p. 5
03

Abuse of court process

Holding

The application is mischievous and an abuse of process, and was dismissed

Reasoning

The Court found the application calculated to outsmart the Respondents and bypass the pending judicial review proceedings. Citing Mativo J in Satya Bhama Gadhi v DPP, it observed that litigation is not a game of chess but a contest by judicial process conducted plainly and without tricks, and dismissed the motion with costs.

p. 5

Legal principles established

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  • A court has authority to implement its own decrees; any report to be adopted pursuant to a decree must be adopted in the court where the order originated, not in a new matter
  • Procedural defects in the marking of affidavit exhibits should not defeat substantive justice where no prejudice is caused
  • Parallel proceedings over the same subject matter between the same parties should not be entertained as they risk conflicting decisions

Court orders

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  1. 1.The Notice of Motion dated 26th March 2025 is dismissed with costs as an abuse of the process of court

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 47, 50, 159(2)(d)
  • Oaths and Statutory Declarations Act (Cap 15)Rule 9 of the Oaths and Statutory Declarations Rules
  • Civil Procedure ActSection 6

Cases cited (5)

  • Microsoft Corporation v Mitsumi Computer Garage Ltd & Another
    [2001] eKLR
  • Kibaki v Moi & Another (No. 3)
    [2000] 2 EA 115
  • Thiba Min Hydro Co. Ltd v Josphat Karu Ndwiga
    [2015] eKLR
  • Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd & Another
    [2017] eKLR
  • Satya Bhama Gadhi vs DPP & 3 Others
    (2018) eKLR
Jurisdiction invoked
Articles 40, 47 and 50 of the Constitution of Kenya, 2010 and all enabling provisions of the law

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, "Toimasi (Deceased) v Nchiroine & 3 others (Miscellaneous Application E024 of 2025) [2025] KEELC 6932 (KLR)", Case Analysis (2025). Notice of Motion dated 26th March 2025 (Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6932/eng@2025-10-09

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