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ELCStruck OutMiscellaneous Application E026 of 2023

Zete Enterprises Limited v Ganday General Trading and Transport Company Limited & another

Environment and Land Court at Nairobi
30 November 2023
1,645 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a landlord's eviction application because final orders like eviction cannot be sought through a miscellaneous application.

What this practically means

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Executive summary

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Zete Enterprises Limited, the registered owner of L.R. No. 209/16955, moved the Environment and Land Court at Nairobi by a miscellaneous application dated 7th August 2023 seeking eviction of Ganday General Trading and Transport Company Limited and Feisal Abdulahi Hassan, a mandatory injunction to remove scrap metal, vehicle wreckage, industrial waste, garbage and structures, alternatively leave to remove the items and demolish structures at the respondents' cost, and further leave to auction unclaimed movables. The applicant asserted the parties' lease and exit agreement terminated on 31st March 2023, that a three-month statutory notice was ignored, and that the respondents were trespassers denying it possession and revenue. The respondents filed a preliminary objection under Order 2 rule 15 CPR 2010 invoking section 6 of the Civil Procedure Act, contending the matter was sub judice in Milimani MC ELC No. E240 of 2023 where they had obtained status quo orders, and a replying affidavit alleging non-disclosure and forum shopping. Framing two issues - the propriety of initiating a suit by miscellaneous application, and sub judice - M.D. Mwangi J held, applying Order 3 rule 1 and the Witmore, Rockland, Nairobi West Hospital and Scope Telematics line of authority, that substantive and final orders cannot issue in a miscellaneous application, the mode of initiating a suit being the basis of jurisdiction. Because eviction under section 152E of the Land Act requires an elaborate enquiry, the application was an attempt at summary disposal. The court declined to reach the merits or the sub judice issue but observed that parallel suits over the same subject matter amount to abuse of process. The Notice of Motion was struck out with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether a Miscellaneous Application is the proper way of initiating a suit as the instant one seeking substantive and final orders
  2. 2.Whether the instant application is sub judice and amounts to an abuse of the process of Court in view of the existence of Milimani MC ELC E240 of 2023

Key legal issues

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01

Whether eviction and mandatory injunction orders could be sought by miscellaneous application

Holding

No - the orders sought were substantive and final and required institution of a proper suit under Order 3 rule 1

Reasoning

The court applied Order 3 rule 1 CPR 2010 and authorities (Rockland Kenya, Witmore Investment, Nairobi West Hospital, Scope Telematics) holding that orders resolving contested issues with finality cannot issue in miscellaneous applications. Because eviction under section 152E of the Land Act requires an elaborate enquiry into statutory conditions and the tenancy relationship, the misc. application could not afford that opportunity and was an attempt at summary disposal.

p. 4
02

Whether the application was sub judice and an abuse of process given Milimani MC ELC No. E240 of 2023

Holding

The court declined to decide the second issue but stated emphatically that simultaneous suits over the same subject matter amount to abuse of process

Reasoning

Having struck out the application on the first issue, the judge refrained from discussing merits or deciding the sub judice objection to avoid prejudicing the magistrate's court proceedings, but flagged that parallel litigation between the same parties over the same subject matter is an abuse of process and a ground for striking out a subsequent suit.

p. 4

Legal principles established

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  • Substantive and final orders cannot be granted in a miscellaneous application; a suit seeking final relief must be initiated in the manner prescribed by law
  • The manner of initiating a suit is not a mere technicality but the basis of jurisdiction
  • Instituting simultaneous actions between the same parties over the same subject matter in different courts is an abuse of process and may ground striking out the subsequent suit

Court orders

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  1. 1.The Notice of Motion application dated 7th August 2023 is struck out
  2. 2.Costs of the application awarded to the Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act; procedure governed by the Civil Procedure Act and Civil Procedure Rules, 2010 (Order 3 rule 1)

Relief refused

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Order of eviction of the Respondents from L.R. No. 209/16955

Substantive and final orders cannot be issued in a miscellaneous application; the application was struck out

p. 4

Mandatory injunction compelling removal of scrap metal, wreckage, waste and structures

Struck out as improperly initiated; court declined to reach merits

p. 4

Costs

Costs to the Respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I make a nding that the substantive and nal orders sought by the Applicant in this matter cannot be issued in a Miscellaneous application.
p. 4improper initiation of suit
the manner of initiating a suit is not a mere technicality; it is actually the basis of jurisdiction
p. 3jurisdiction and mode of instituting suits
Consequently, the Notice of Motion application dated 7th August 2023 is struck out with costs to the Respondents.
p. 4final orders/disposition
instituting dierent actions between the same parties over the same subject matter simultaneously in dierent courts even though on dierent grounds amounts to an abuse of the process of court
p. 4abuse of process / parallel litigation

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, "Zete Enterprises Limited v Ganday General Trading and Transport Company Limited & another", Case Analysis (2023). Miscellaneous Application E026 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21937/eng@2023-11-30

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