[2023] KEELC 21463 (KLR)
The court held that the application was incompetent because it sought final orders by way of a notice of motion, which is not a recognized originating process under Kenyan civil procedure. The applicants, being interested parties in the main suit (Thika ELC 411 of 2017), should have sought their remedies within that...
Source-derived case information.
- Citation
- [2023] KEELC 21463 (KLR)
- Parties
- Applicant: Daniel Kinyanjui Muiruri; Applicant: Bibianna Wambui Kariuki; Applicant: Sabina Wanjiru Irungu; Applicant: Benson Maina Mwangi; Respondent: Eliud Wambui Chai t/a Chador Auctioneers
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Thika
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application E027 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Application
- Outcome
- application struck out as incompetent
- Judges
- JG Kemei
- Legal Topics
- Originating Process, Interlocutory Injunctions, Party Status, Demolition Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kinyanjui Muiruri
Applicant
Bibianna Wambui Kariuki
Applicant
Sabina Wanjiru Irungu
Applicant
Benson Maina Mwangi
Applicant
Eliud Wambui Chai t/a Chador Auctioneers
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Application
Legal Issues
- 1 Whether the applicants can seek final injunctive relief by way of a notice of motion outside a properly instituted suit.
- 2 Whether the court has jurisdiction to entertain the application in light of an existing suit and decree.
- 3 Whether the applicants are parties to the decree being enforced by the respondent.
Ratio Decidendi
The court held that the application was incompetent because it sought final orders by way of a notice of motion, which is not a recognized originating process under Kenyan civil procedure. The applicants, being interested parties in the main suit (Thika ELC 411 of 2017), should have sought their remedies within that suit rather than through a separate miscellaneous application. The court found that entertaining the application would amount to duplication of proceedings and misuse of judicial resources. Consequently, the application was struck out for being improperly before the court.
Court Disposition
application struck out as incompetent
Orders
- The notice of motion dated 27/10/2023 is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
Muiruri & 3 others v Eliud Wambui Chai t/a Chador Auctioneers (Environment and Land Miscellaneous Application E027 of 2023) [2023] KEELC 21463 (KLR) (7 November 2023) (Ruling)
Neutral citation: [2023] KEELC 21463 (KLR)
Republic of Kenya
In the Environment and Land Court at Thika
Environment and Land Miscellaneous Application E027 of 2023
JG Kemei, J
November 7, 2023
Between
Daniel Kinyanjui Muiruri
1st Applicant
Bibianna Wambui Kariuki
2nd Applicant
Sabina Wanjiru Irungu
3rd Applicant
Benson Maina Mwangi
4th Applicant
and
Eliud Wambui Chai t/a Chador Auctioneers
Respondent
Ruling
1. Before Court is the Applicants’ Notice of Motion dated 27/10/2023 filed pursuant to Order 51 rule 1 Civil Procedure Rules and Sections 1A, B & 3A of the Civil Procedure Act seeking Orders that;-a.Spent.b.Spent.c.The Respondent be restrained by an order of the Court from demolishing the Applicants building at Jamhuri market Thika using a decree in which the Applicants are not parties. (sic)d.Costs of this application be provided for.
2. The Motion is based on the grounds on the face of it and Supporting Affidavit of Daniel Kinyanjui Muiruri the 1st Applicant. The gist of the application is that the Respondent visited the Applicants’ premises at Jamhuri market on 25/10/2023 accompanied by Thika Police Station OCPD and OCS to demolish the Applicants’ building. That this move was in accordance with the Decree issued in Thika ELC Case No. 411 of 2017 which the Applicants allege they are not party to.
3. The Application is unopposed.
4. Before delving into the merits of the Application, a perusal of Thika ELC 411 of 2017 is paramount. The Applicants herein are the 2nd, 3rd, 4th and 1st Interested Parties in Thika ELC 411 of 2017. Presently that matter awaits Ruling of a Preliminary Objection on 7th December 2023 and without saying no more the Applicants are actively participating in the litigation.
5. Further the Application is founded on Order 51 Rule 1 Civil Procedure Rules which provides;“1. Procedure [Order 51, rule 1. ]All applications to the Court shall be by motion and shall be heard in open Court unless the Court directs the hearing to be conducted in chambers or unless the rules expressly provide.”
6. The orders sought herein are final in nature as against the Respondent. Undoubtedly that was not the intention of the Civil Procedure Rules drafters had in mind when coaching the above provision. It is trite that a suit can only be instituted by way of a Plaint, Petition or an Originating Summons. A Notice of Motion is not legally recognized as an originating process. A notice of motion can only be within a properly instituted suit.
7. This Court is not persuaded that it has been properly moved to entertain this Application in the instant manner in light of a live suit and a Judgement therein whose decree is annexed as DKM2. This action amounts to vexing the limited Court’s time and resources and duplication of efforts contrary to the spirt of the provisions of Sections 1A Civil Procedure Act.
8. The motion is incompetent and it is for striking out with no orders as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 7TH DAY OF NOVEMBER, 2023 VIA MICROSOFT TEAMS.J G KEMEIJUDGEDelivered online in the presence of;Ngaruiya for 1st – 4th ApplicantsRespondent - AbsentCourt Assistants – Phyllis & Lilian