[2024] KEELC 5850 (KLR)
The court held that the applicant's attempt to enforce interim orders issued in a different, still pending suit (Voi Elcep Pet No. 1 of 2024) through a separate miscellaneous application was procedurally improper. The correct procedure would have been to seek enforcement within the original suit where the orders...
Source-derived case information.
- Citation
- [2024] KEELC 5850 (KLR)
- Parties
- Applicant: The Washumbu (Directed Agricultural) Company Limited; Respondent: The Officer Commanding Police Station (Ocs) Kasigau
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E001 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Application
- Outcome
- application struck out
- Judges
- EK Wabwoto
- Legal Topics
- Enforcement of Court Orders, Abuse of Court Process, Miscellaneous Applications, Conservatory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Washumbu (Directed Agricultural) Company Limited
Applicant
The Officer Commanding Police Station (Ocs) Kasigau
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Application
Legal Issues
- 1 Whether the applicant can seek enforcement of interim orders from a different suit through a miscellaneous application.
- 2 Whether the application is competent and properly before the court.
- 3 Whether the respondent is a proper party for the enforcement sought.
Ratio Decidendi
The court held that the applicant's attempt to enforce interim orders issued in a different, still pending suit (Voi Elcep Pet No. 1 of 2024) through a separate miscellaneous application was procedurally improper. The correct procedure would have been to seek enforcement within the original suit where the orders were issued and where all relevant parties, including the subject of the original orders, are present. The court found that the present application was incompetent, amounted to an abuse of court process, and could not be entertained. As such, the application was struck out.
Court Disposition
application struck out
Orders
- The application dated 7th August 2024 is hereby struck out.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
Washumbu (Directed Agricultural) Company Limited v Officer Commanding Police Station (OCS) Kasigau (Miscellaneous Application E001 of 2024) [2024] KEELC 5850 (KLR) (Employment and Labour) (26 August 2024) (Ruling)
Neutral citation: [2024] KEELC 5850 (KLR)
Republic of Kenya
In the Environment and Land Court at Voi
Employment and Labour
Miscellaneous Application E001 of 2024
EK Wabwoto, J
August 26, 2024
Between
The Washumbu (Directed Agricultural) Company Limited
Applicant
and
The Officer Commanding Police Station (Ocs) Kasigau
Respondent
Ruling
1. This ruling relates to the application commenced by the Applicant by way of a miscellaneous application dated 7th August 2024. The application sought the following prayers: -a.…b.That summons be issued to the OCS Kasigau Police Station to appear before this court for the purposes of rendering an account on the presence of his police officer on the Applicant’s land L.R No. 14206 Taita.c.That the Respondent be directed to allow unlimited access to L.R No. 14206 Taita by the Applicant.d.That the court be allowed to issue such other or further relief that the court may deem just and expedient to grant.e.That the costs of this application be borne by the Respondent.
2. The application was premised on the grounds appearing on its face and was supported by the Affidavit sworn by Jimmy Mwamidi on 7th August, 2024 in support to the application.
3. Having carefully considered the instant application and the affidavit in support together with the annexures thereto, it is evident that the application seeks inter alia for the enforcement of the interim orders issued on 5th July 2023 by this court differently constituted in respect to Voi Elcep Pet No. 1 Of 2024 (formerly Msa Elc No. E005 Of 2023 The Washumbu (directed Agricultural) Company Limited Vs Joseph Kamau Mbiriri & Others. The court in issuing the said orders granted conservatory orders restraining Joseph Kamau Mbiriri from conducting mining activities on the suit property pending the hearing and determination of the said petition. VOI ELCEP PET NO. 1 OF 2024 is still pending before this court and no reasons have been given as to why the instant application was not filed in the pending suit.
4. The Applicant in seeking the enforcement of the said orders has proceeded to file the instant miscellaneous application wherein Joseph Kamau Mbiriri is not a party to the instant application. An application seeking to enforce existing orders in a pending suit can only be filed in the said suit and not through a separate miscellaneous application.
5. In view of the foregoing, the application before court is not competent, the same amounts to an abuse of the court process. This court finds that the said application is misconceived. The application, therefore, lacks any legal leg to stand on and suffers a false start. The prayers sought cannot be granted and the said application is for rejection.
6. Having said so and drawing from the foregoing, this court hereby issues the following orders: -a.The application dated 7th August 2024 is hereby struck out.b.There shall be no orders as to costs.c.The file is closed.Orders accordingly.
DELIVERED, DATED AND SIGNED AT VOI THIS 26TH DAY OF AUGUST 2024. E.K. WABWOTOJUDGE