https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3099

Kamuru v Lingine (Environment and Land Case E017 of 2026) [2026] KEELC 3099 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEELC 3099 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Case E017 of 2026 JO Mboya, J May 20, 2026 Between David Lairangi Kanoru Kamuru Plaintiff and James Baimithia Lingine Defendant Ruling 1.What is before me is the Notice of Motion Application dated 17.04.2026; brought pursuant to the provisions of Sections 1A, 1B and 3 A of the Civil Procedure Act, Chapter 21 Laws of Kenya; Order 40 Rule 1; and Order 51 Rule 1 of the Civil Procedure Rules; Section 68 of the Land Registration Act; and Article 159 of the Constitution 2010. The reliefs sought are:i.That this Application be heard exparte and certified urgent and service thereof be dispensed with in the first instance.ii.That this Honourable court be pleased to issue an order of temporary injunction restraining the defendant by himself, his agents, employees or any other person claiming on their name from entering, trespassing, encroaching, alienating, evicting, selling, disposing off and/or interfering with Plaintiff’s possession and use of parcel of land L. R. No. Meru North/Athinja/3618 pending the hearing and determination of this application.iii.That this Honourable court be pleased to issue an order of temporary injunction restraining the defendant by himself, his agents, employees or any other person claiming on their name from entering, trespassing, encroaching, alienating, evicting, selling, disposing off and/or interfering with Plaintiff’s possession and use of parcel of land L. R. No. Meru North/Athinja/3618 pending the hearing and determination of this suit.iv.That this court be pleased to issue an order of inhibition to be registered against the land parcel L. R. No. Meru North /Athinga/Athanja/15996,15997,15998,15999 and 16000 pending the hearing and determination of this suit.v.That the cost of this Application be provided for. 2.The Application is premised on various grounds. The grounds are: The Applicant is the registered owner of L/R No. Meru North/Athinga/Athanja/3618 [the suit property]; the Respondent herein filed an objection to the suit property contending that the suit property fell within or constituted part of L/R No. Meru North/Athinga/Athanja/4282 belonging to the respondent; the objection was heard and dismissed; the Applicant has remained in occupation of the suit property; and the Applicant is entitled to exclusive possession of the suit property. 3.Additionally, the Applicant has posited that: The Respondent herein procured and obtained an order seeking to amend and alter the registry index map; the order was issued vide Tigania CMELC MISC. No. E043 of 2025; the order in question was procured by non-disclosure; the order has since been used to alter and change the registry index map; the alteration of the registry index map has interfered with the suit property; and the alteration of the registry index map has superimposed the respondent’s property on to the suit property. 4.Furthermore, the Applicant has also contended that following the alteration of the registry index map, the Respondent has since proceeded to and sub-divided his parcel of land into various portions; and the Respondent is now on the verge of selling/disposing off the resultant portions. To this end, it has been contended that the actions of the Respondent are bound to affect and prejudice the applicant. 5.As a result of the foregoing, the Applicant has now sought the intervention of the court to grant a temporary order of injunction; and an inhibition as against the various sub-divisions arising from LR No. Meru North/Athinga/Athanja/4282, pending the hearing and the determination of the subject suit. 6.The Respondent duly filed a replying affidavit sworn on the 06.05.2026. The Respondent has raised various assertions including: the respondents is the owner of L/R No. Meru North/Athinga/Athanja/4282; the Respondent is entitled to exclusive possession of his parcel of land; the Applicant herein had encroached upon and occupied portions of the respondent’s land; the Respondent sought and obtained an order of the court for amendments of the registry index map; the amendment was duly perfected; the ground of the Respondent’s land was visited; the surveyor duly marked the boundaries of the respondent’s land; the surveyor also ascertained the acreage of the respondent’s land; and thereafter the Respondent has subdivided his land into various portions. 7.Moreover, the Respondent has posited that: The amendment of the registry index map was done pursuant to lawful court orders; the said orders have neither been set aside nor quashed; the said orders cannot be challenged vide another suit; and the Applicant herein ought to review the orders [if at all] before the lower court. 8.The Respondent has further averred that: the Applicant herein has since filed an application for review before the lower court; the application for review is dated the 02.04.2026 ; the said application is pending before the lower court; the orders sought vide the said application correspond with the orders sought in respect of the subject suit; and the subject suit and the application constitute and abuse of the due process of the court. 9.Additionally, the Respondent has also contended that the Applicant has also filed an appeal challenging the orders that were issued in the lower court. To this end, it has been averred that the Applicant is guilty of filing a multiplicity of suits over and in respect of the same matter. 10.The subject application came up for hearing today [the 20.05.2026], whereupon the advocates for the parties intimated to the court that same were ready to proceed with the hearing. The court thereafter issued directions and the application indeed proceeded for hearing. 11.Learned counsel for the Applicant adopted the grounds contained in the body of the application; reaffirmed the contents of the supporting affidavit sworn on the 17.04.2026; the supplementary affidavit sworn on the 18.05.2026; and thereafter highlighted four [4] issues. The issues are: The Applicant has established and proven the existence of a prima facie case; the Applicant has demonstrated that same shall suffer irreparable loss; the balance of convenience tilts in favour of the applicant; and that the affidavit[s] in support of the application are competent and valid. 12.In response to a question from the court as to whether an affidavit can be commissioned by a firm of advocates and not a designated commissioner of oaths, learned counsel for the Applicant posited that it is possible for the affidavit to be commissioned by a firm of advocates. Moreover, learned counsel contended that the manner in which the affidavit[s] were commissioned does not go to the root of the application. 13.Regarding whether the Applicant herein has filed an application to review and challenge the offensive orders which led to the amendments/ alteration of the registry index map, learned counsel conceded that indeed an application is pending. In particular, it was submitted that the application is seeking various orders including review of the amendments of the map and setting aside of the consequential actions/step[s] arising therefrom. 14.As pertains to whether this court can entertain the subject suit; and whether the subject suit is essentially intended to impeach the orders issued by the lower court, learned counsel submitted that the issues vide the instant suit are separate and distinct from what was before the lower court. 15.Moreover, learned counsel submitted that any orders issued in respect of the subject matter shall not contradict; or derogate from the orders of the lower court. 16.Premised on the foregoing, learned counsel for the Applicant has invited the court to find and hold that the application is meritorious. In addition, it has been contended that the application satisfies the requisite conditions for the grant of an order of temporary injunction. 17.Learned counsel for the Respondent adopted the contents of the replying affidavit sworn on the 06.05.2026; and the annextures thereto. Furthermore, learned counsel proceed to highlighted four [4] key issues. The issues are: The amendments of the registry index map were underpinned by lawful court orders; the lawful court orders have not been set aside or varied; the Applicant herein is guilty of abusing the due process of the courts; and the Applicant has not met the threshold for the grant of an order of temporary injunction. 18.Regarding whether an affidavit can be commissioned by a firm of advocates as opposed to a commissioner for oaths, learned counsel contended that an affidavit can only be commissioned by a designated commissioner of oaths in accordance with the provisions of the Oaths and Statutory Declaration Act, Chapter 15 Laws of Kenya. To this end, learned counsel contended that the twin affidavits relied upon by the Applicant are incompetent and invalid. 19.As pertains to whether this court can set aside or vary the actions arising from lawful court orders issued in a separate file and matter, learned counsel for the Respondent contended that such an endeavor is contrary to law. In any event, learned counsel added that the Applicant has already filed an application for review before the lower court and hence the subject suit constitutes an abuse of the due process of the court. 20.Having reviewed the application before the court; the two [2] affidavits in support thereof; the replying affidavit in opposition thereto; and upon taking into account the submissions canvased by/on behalf of the respective parties, three [3] key issues crystalize for determination. The issues are: Whether the affidavits in support of the application are competent and valid; whether the suit discloses a reasonable cause of action; and whether the suit and the application constitute an abuse of the due process of the court or otherwise. 21.Regarding the first issue, it is important to highlight that the Applicant herein has filed two [2] sets of affidavits in support of the application dated the 17.04.2026. The affidavits are: the Supporting affidavit sworn on the 17.04.2026; and the Supplementary affidavit sworn on the 18.05.2026. 22.The two [2] affidavits indicate that same were commissioned by M/s Bundi Muthamia & Company Advocates and Commissioners for Oaths. What is notable is to the effect that the stamp that has been affixed to the jurat of the affidavit is that of the law firm and not the stamp of the designated commissioner for oaths. 23.The question that does arise is whether a law firm, and in this case, M/s Bundi Muthamia & Company Advocates and Commissioner for Oath, can administer oaths in line with the provisions of Sections 4 And 5 of the Oaths and Statutory Declaration Act, Chapter 15 Laws Of Kenya or otherwise. Instructively, it is only a designated commissioner for oaths who is mandated to administer oaths, who can perform/ exercise the power to administer Oath. Furthermore, the authority to administer oath by a commissioner is one that cannot be delegated. 24.The provisions of Sections 4 and 5 of the Oaths and Statutory Declaration Act, Chapter 15, Laws of Kenya are succinct; and apt. 25.The provisions state as follows:4.Powers of commissioner for oaths(1)A commissioner for oaths may, by virtue of his commission, in any part of Kenya, administer any oath or take any affidavit for the purpose of any court or matter in Kenya, including matters ecclesiastical and matters relating to the registration of any instrument, whether under an Act or otherwise, and take any bail or recognizance in or for the purpose of any civil proceeding in the High Court or any subordinate court:Provided that a commissioner for oaths shall not exercise any of the powers given by this section in any proceeding or matter in which he is the advocate for any of the parties to the proceeding or concerned in the matter, or clerk to any such advocate, or in which he is interested.(2)A commissioner for oaths shall, in the exercise of any of the powers mentioned in subsection (1), be entitled to charge and be paid such fees as may be authorized by any rules of court for the time being.5.Particulars to be stated in jurat or attestation clause.Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made 26.My reading of the twin sections [details in terms of the preceding paragraphs] drives me to the conclusion that the only person authorized to administer oath is the designated commissioner of oaths. Moreover, Section 3 of the Act [supra] indicate that once a commissioner is commissioned, same must sign the roll. To this end, there is no gainsaying that only an authorized commissioner for oaths and not a firm of advocates can administer oath. 27.Sadly, the matter before me relates to a situation where the stamp of a law firm has been affixed to the jurat of the affidavit and thereafter, it is purported that the affidavit has been [sic] duly commissioned. I am afraid that the affidavits in question are incompetent and invalid. 28.Before concluding on this issue, I also wish to point out that even the verifying affidavit sworn on the 17.04.2026 also suffers from the same defect and anomaly. It then means even the verifying affidavit is contrary to and in violation of the provisions of the Oaths and Statutory Declaration Act [Supra]. 29.When the foregoing deficiencies were pointed out to learned counsel for the applicant, same was quick to invoke the provisions of Article 159 [2] [d] of the Constitution, 2010. In this regard, counsel implored the court to overlook [sic] the anomalies. Moreover, it was contended that the said anomalies are procedural; and technical in nature and thus same should not be deployed to non-suit the applicant. 30.My short answer to the submissions by the learned counsel for the Applicant is to the effect that the violations that have been highlighted are not procedural in nature. On the contrary, the violations are substantive and fundamental. The violations cannot be remedied by the invocation and deployment of the provisions of Article 159 [2] [d] of the Constitution, 2010. [See the Decision of the Court of Appeal in the case of Mumo Matemo versus Trusted Society of Human Rights Alliance and others [2013] eKLR.] 31.Next is the issue whether the suit discloses a reasonable cause of action. There is no dispute that the lower court [Tigania Chief Magistrate’s Court] issued certain orders on the 08.05.2025 and which underpin the alteration/amendments/rectification of the registry index map. The said orders remain in existence. The orders are yet to be set aside and or varied. 32.Notwithstanding the foregoing, the Applicant has now approached this court seeking to impugn [impeach] the amendments of the registry index map and the cancellation of the resultants sheets which were undertaken pursuant to the said lawful orders. 33.What I hear the Applicant to be seeking is that this court should use the instant suit [which is not an appeal] to supersede the orders that were issued before the lower court. In addition, this court is also being asked to set aside the actions and steps that are underpinned by the orders which were issued in the lower court. 34.I am alive to the fact that this court is seized of the appellate jurisdiction over the decisions of the magistrate’s courts. I am also alive to the fact that in appropriate cases, this court can set aside the decisions of the lower court. Nevertheless, I must clarify that such actions can only be undertaken vide an appeal or where a suitable judicial review application is filed; and not by the filing of a [sic] a separate suit. 35.On the contrary, this court cannot be invited to use a separate civil suit as the vehicle for invalidating lawful court orders. For good measure, it is apposite for parties and their advocates to appreciate the scope of the jurisdiction of the court and how competing jurisdiction[s], namely; Original and Appellate, are to be invoked. Simply put, the Applicant herein has approached the court through the back door. 36.With the foregoing in mind, has the Applicant espoused a reasonable cause of action? I am afraid that the suit before me does not exhibit a lawful cause of action. Notably, the complaints by the Applicant [if same are true] can only be addressed by way of an appeal or better still by way of review, subject to the applicable law. 37.What constitutes a reasonable cause of action was expounded in the case of Kigwor Company Limited v Samedy Trading Company Limited [2021] KECA 810 (KLR). 38.The Court of Appeal stated thus:In the Court of Appeal case of Attorney General & another v Andrew Maina Githinji & Another [2016] eKLR Justice Waki held that:-“A cause of action is an act on the part of the defendant, which gives the plaintiff his cause of complaint.”That definition was given by Pearson J. in the case of Drummond Jackson vs. Britain Medical Association (1970) 2 WLR 688 at pg 616. In an earlier case, Read vs. Brown (1889), 22 QBD 128, Lord Esher, M.R. had defined it as:-“Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.”Lord Diplock, for his part in Letang vs. Cooper [1964] 2 All ER 929 at 934 rendered the following definition:-“A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”When did the cause of action in this case arise? Put another way, when did the respondents become entitled to complain or obtain a remedy ...” 39.My answer to issue number two [2] is to the effect that the subject suit, which essentially seeks to impugn the orders and actions arising from the orders of the magistrate’ court, does not disclose a reasonable cause of action. I repeat that the impugned orders of the lower court cannot be set aside or varied through another suit. Suffice it to state that an ordinary suit like the one before hand is different from an appeal; or a judicial review. 40.Turning to the third issue, namely; whether the instant suit constitute[s] and abuse of the due process of the court. It is important to underscore that the Applicant herein has equally filed an application seeking review of the orders which were issued by the lower court. The application is dated the 02.04.2026. Moreover, learned counsel for the Applicant conceded that the said application has neither been heard nor determined. 41.Furthermore, it is equally important to point out that a copy of the application was annexed to the replying affidavit by the respondent. Quite clearly, the Applicant is seeking the same or near same orders vide the application before the lower court. 42.In the premises, what comes to the fore is that the Applicant has filed two [2] different causes before this court and the lower court, but whose import is to challenge the orders of the lower court. It is settled law that a party cannot file/commence a multiplicity of suits before various courts [or the same court] at all. Moreover, where a court of law comes to the conclusion that its processes are being misused, then the court must stand firm and disabuse the concerned litigant from such an action. 43.It is my conclusion that the Applicant herein is guilty of abuse of the due process of the court. In the case of Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR - Miscellaneous Civil Application 685 of 2017 the court [Per Mativo – J as he then was] stated thus:This obstacle to the efficient administration of justice is not immovable. Courts need not and should not wait for lawyers and litigants to initiate proceedings where there is substantial reason to believe that the processes of the court have been abused. Tampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which such abuse cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception, fraud and blatant abuse of judicial processes.30.All courts have an inherent or implied jurisdiction to prevent their processes from being used as an instrument of oppression. Courts are able to modify their procedures to avoid such prejudice and take any steps that are necessary to prevent an abuse of process.[20]The concept of abuse of process extends to the use of the court’s processes in a way that is inconsistent with two fundamental requirements arising in Court proceedings. These are, first, that the Court protect its ability to function as a Court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that unless the Court protects its ability to function in that way, its failure will lead to an erosion of public confidence. The court’s processes will be seen as lending themselves to oppression and injustice.[21]31.The concept of abuse of process overlaps with the obligation of a Court to provide a fair trial. The content of these obligations cannot, however, be stated exhaustively or analytically. These obligations rely on intuitive judgments formed by experience.[22]The obligation on a court is to provide a fair trial in accordance with law. The due administration of justice is a continuous process. Courts must be vigilant to ensure that public confidence in the administration of justice is maintained.[23] 44.In a nutshell, it is my finding that the subject suit and which is not an appeal, clearly constitute[s] an abuse of the court process and the Applicant must be told that same can only approach the court once at a time and not to duplicate his claims by invoking two parallel processes and at the same time. 45.Such conduct amounts to an abuse of the court process. That conduct is unacceptable in the eyes of the law. Conclusion 46.From the foregoing analysis, several conclusions arise. The summary of conclusions are:i.The supporting affidavits and the verifying affidavits filed by the Applicant are incompetent and invalid.ii.The defect at the foot of the named affidavits are substantive and fundamental.iii.The defects are not remediable by the invocation and deployment of the provisions of Article 159 [2] [d] of the Constitution, 2010.iv.The suit and the application do not disclose a reasonable cause of action.v.The suit and the application constitute an abuse of the due process of the court. Final orders: 47.Consequently, and in the premises, the final orders that commend themselves to the court are:i.The Application dated 17.04.2026 be and is hereby struck out.ii.The suit be and is hereby struck out.iii.Costs of the Application and the suit be and are hereby awarded to the Defendant.iv.The Costs in terms of clause [3] shall be agreed upon and in default be taxed in the conventional manner. 48.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU ON 20TH MAY, 2026.OGUTTU MBOYA; FCIArb;CPM [MTI-EA].JUDGE.In the Presence of-Mr. Zakayo- Court AssistantMr. Thiruaine for the Plaintiff /ApplicantMr. J. O Ondieki for the Defendant/Respondent