Mwangangi v Mutiso (Environment and Land Miscellaneous Application E090 of 2025) [2026] KEELC 1547 (KLR)

3. This court has meticulously examined the application, which is referenced as the “originating summons”, including its grounds and afidavit, and the issue for determination is whether the motion is an abuse of court process. 4. Concerning this matter, it is a well-established legal principle that the court possesses inherent jurisdiction to protect itself against abuse or to prevent its processes from being misused. An abuse of court process is any departure from established good order that significantly deviates from the reasonable use of court process; such abuse occurs when an individual makes excessive, improper, or contradictory use of court procedures, thereby contravening the natural legal principles. The persuasive decision in Satya Bhama Gandhi v. Director of Public Prosecutions & 3 others [2018] KEHC 6100 (KLR) outlined several examples of such instances of abuse of court process. 5. As to the definition of the term “abuse of the court process,” reference is made to the decision in the Court of Appeal case of Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] KECA 453 (KLR), which reafirmed the definition as set forth in two foreign court decisions in the following manner: “ In Beinosi v Wiyley 1973 SA 721 [SCA] at page 734F-G a South African case heard by the Appeal Court of South Africa, Mohomad CJ, set out the applicable legal principle as follows: “ What does constitute an abuse of process of the court is a matter which needs to be determined by the circumstances of each case. There can be no allencompassing definition of the concept of “abuse of process.” It can be said in general terms, however, that an abuse of process takes place where the proceedings permitted by the rules of court to facilitate the pursuit of the truth are used for purposes extraneous, to that objective.” Again the Court of Appeal in Abuja, Nigeria in the case of Attahiro v Bagudo 1998 3 NWLL pt 545 page 656, stated that the term abuse of court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the eficient and efiective administration of justice. It is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. The term abuse of process has an element of malice in it. In the Nigerian Case of Karibu-Whytie J Sc in Sarak v Kotoye (1992) 9 NWLR 9pt 264) 156 at 188-189 (e) the concept of abuse of judicial process was defined:“ The concept of abuse of judicial process is imprecise, it implies circumstances and situations of infinite variety and conditions. Its one feature is the improper use of the judicial powers by a party in litigation to interfere with the administration of justice …” 6. In the present case, it is contended that the basis of this motion is that the respondent’s suit was dismissed in Machakos CMCC No. 87 of 2016, and a court order dated 24th March 2016 has been presented to this court to substantiate this claim. However, a review of this order does not reveal any dismissal; rather, the lower court merely stood over the matter generally as it lacked jurisdiction to handle land matters at that time. Nonetheless, the issue regarding the jurisdiction of the magistrate’s court to handle land matters is now conclusively settled. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1547/eng@2026-03-17 2

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7. To ensure reasonable and equitable access to justice in counties and in exercise of Article 169 (2) of the Constitution, Section 26 (3) and (4) of the ELC Act provides that gazetted magistrates are conferred with jurisdiction to handle matters on land and environment but subject to pecuniary and territorial limitations which are provided for in Section 9(a) of the Magistrates’ Act, Section 26 (4) of the ELC Act and Sections 12 and 15 of the Civil Procedure Act. This latter provision states: “ (4) 8. Subject to Article 169(2) of the Constitution, the Magistrate appointed under sub-section (3) shall have jurisdiction and power to handle — (a) disputes relating to ofiences defined in any Act of Parliament dealing with environment and land; and (b) matters of civil nature involving occupation, title to land, provided that the value of the subject matter does not exceed the pecuniary jurisdiction as set out in the Magistrates' Courts Act. Considering the existence of the other matter, which the applicant has deceitfully misled the court into believing was dismissed, it was not permissible for them to pursue a fresh matter. Their actions are therefore tantamount to sub judice. Furthermore, guided by the doctrine of lis pendens, all parties before the lower court are automatically obligated to preserve the subject property during the pendency of the proceedings; consequently, the caution is appropriately registered, as it serves as a notice to the public of the pending court proceedings. Thus, this court finds the application dated 22/09/2025 to be an abuse of court process and hereby strikes it. Since it was unopposed, there shall be no orders as to costs. This file is hereby efiectively marked as closed. Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 17TH DAY OF MARCH, 2026. HON. A. Y. KOROSS JUDGE 17.03.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Ms Kanja Court Assistant Miss. Wanaina holding brief for Mr. Kakinga for the Applicant. No appearance for Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1547/eng@2026-03-17 3

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