Maru v Kios & 4 others (Environment and Land Miscellaneous Case E010 of 2025) [2025] KEELC 5461 (KLR)
The bottom line
#The Environment and Land Court at Kapsabet struck out a land dispute application because it bypassed proper procedure and duplicated a case already pending in a lower court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the preliminary objection dated 26th March 2025 is sustainable
- 2.Whether this court has statutory jurisdiction to entertain a suit commenced by a Notice of Motion rather than a plaint, petition or originating summons
- 3.Whether the application dated 24th February 2025 is sub judice in view of Kapsabet CMELC 12 of 2019 over the same subject properties
- 4.Whether the application is frivolous, vexatious and an abuse of the court process
Key legal issues
#Sub judice and improper institution of suit
The preliminary objection succeeded: the application was sub judice, given Kapsabet CMELC 12 of 2019 involving the same property and parties, and was improperly instituted by Notice of Motion without an underlying suit, and was accordingly struck out.
Sections 5, 6 and 8 of the Civil Procedure Act underpin the sub judice principle, while sections 8 and 19 and Order 3 Rule (i) and (ii) prescribe how suits may be instituted, namely by plaint, petition or originating summons. The dispute between the same parties over the same property was already pending before the Kapsabet Chief Magistrate's Environment and Land Court and fixed for mention on 13th August 2025. Relying on the Kenya Ports Authority and Goldenberg/Kilach decisions, the court held jurisdiction can be raised at any time and the same matter should not proceed simultaneously in two courts.
Legal principles established
#- Jurisdiction is a fundamental matter that may be raised at any stage of the proceedings
- The same matter should not be heard simultaneously by two courts
Court orders
#- 1.The application dated 24th February 2025 is struck out with no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court Act; Civil Procedure Act (Cap 21) sections 5, 6, 8 and 19; Order 3 Rule (i) and (ii) Civil Procedure Rules 2010 considered on the preliminary objection
Relief refused
#Permanent injunction against the respondents from trespassing on and utilising land parcels Nandi/Legemet 293/300/301/302/303/304/305/306 and 307 and enforcement by OCS Ndurio, Area Chief and Sub County Administrator
The suit was improperly instituted by Notice of Motion without an underlying plaint, petition or originating summons, was sub judice in view of Kapsabet CMELC 12 of 2019, and amounted to an abuse of court process
Costs
No orders as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is therefore, the finding of this court that the preliminary objection dated 26th March 2025 is loaded with merit. It is sustainable.
Accordingly, the application dated 24th February 2025, is hereby struck out with no orders as to costs.
jurisdiction is such a fundamental matter that it can be raised at any stage and time of proceedings
it would not be right for the same matter to be heard simultaneously by this court and Kapsabet Chief Magistrate’s court
Issues in the judgment
#The parties are not named in the body of the ruling; only roles (applicant and 1st–5th respondents) appear, though a related case caption names Stephen Kiptabut Maru, George Kiprop Letting, Weslet/Wesley Kiptoo Tum and Lilian Cheptarus/Chaptarus Kios
Spelling of names of the related suit's parties is inconsistent within the judgment (Weslet/Wesley; Cheptarus/Chaptarus)
The applicants are said to have commenced the matter by Notice of Motion without an underlying suit, yet the draft orders refer to 'Plaintifi/Applicant'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maru v Kios & 4 others (Environment and Land Miscellaneous Case E010 of 2025) [2025] KEELC 5461 (KLR)", Case Analysis (2025). Not stated in judgment (Notice of Motion dated 24th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5461/eng@2025-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.