Muiruri & 3 others v Eliud Wambui Chai t/a Chador Auctioneers [2023] KEELC 21463 (KLR)

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