Automated Summary
Key Facts
The case involves Five Eleven Traders and Auctioneers, through its owner Crispus Waithaka, seeking legal redress against Ali Khan Ali Muses, Estate Sonrisa Limited, and the OCPD/OCS Diani Police Station. The Environment and Land Court (Mombasa) ruled on December 7, 2022, that prayers 9–11 of the February 21, 2022, notice of motion (seeking criminal investigations and property restoration) must be addressed by ELC 3 (Naikuni J), as the trial court, rather than ELC 1. This follows prior directions from Munyao J on July 20, 2022, emphasizing that ELC 3 should handle the matter to its conclusion unless the appellate court intervenes. The court declined to assume jurisdiction over the criminal-related prayers, noting they fall outside its civil mandate.
Issues
- The applicant requested directions for preparing a final legal opinion on the Court of Appeal regarding a surveyor's report. The court declined, stating this duty is unrelated to the current application and that pending actions on the surveyor's report must be pursued through the substantive suit (Mombasa ELC No 30 of 2014).
- The court addressed whether it could direct the investigation of the applicant's owners for criminal intent under Prayer 9. It determined that since the case is a civil matter, the court cannot issue criminal investigation orders and advised the applicant to report the matter to the police.
- The applicant sought orders under Prayers 10 and 11 to restore the property to its pre-demolition state ('status quo ante') and compensate for damages. The court noted these prayers were deferred to ELC No 3 and emphasized that the trial court remains responsible for resolving such civil matters.
Holdings
- The court declined to assume jurisdiction over prayers 9-11 of the February 21, 2022 application, ruling that ELC 3 (Naikuni J) remains the appropriate trial court to handle these matters to their logical conclusion unless directed otherwise by the appellate court. Prayer 9, seeking criminal investigation of the applicant's owners, was dismissed as a civil court cannot grant criminal investigations. Prayers 10 and 11 regarding property restoration were noted to require determination by ELC 3, with no recusal having occurred.
- The court clarified that Mombasa ELC No 30 of 2014 is being handled by ELC 2 (Matheka J), not ELC 1, and reiterated that applications related to the surveyor's report must be filed in that substantive case. The judge declined to issue directions on preparing a final legal opinion for the Court of Appeal, stating it is unrelated to the February 21, 2022 application's issues.
Remedies
The court referred the matter back to ELC 3 to continue handling it as appropriate, citing that the trial judge remains in the station and has not recused himself/herself. This follows directions from prior rulings which emphasized that the trial court (ELC 3) should handle the application to its logical conclusion unless otherwise directed by the appellate court.
Legal Principles
The court emphasized that the trial court (ELC 3) retains jurisdiction over the application and its outstanding prayers unless directed otherwise by an appellate court. It clarified that criminal investigations (prayer 9) must be addressed in criminal proceedings, not civil matters, and that the trial judge should continue handling the case to its conclusion to maintain judicial coherence and order.
Precedent Name
- Mombasa ELC No 30 of 2014
- Kwale ELC E001 of 2022
- Court of Appeal ruling (April 24, 2012)
Cited Statute
Civil Procedure Rules, 2010
Judge Name
S M Kibunja
Passage Text
- What we still have is Miscellaneous Application No E006 of 2022 and the original Mombasa ELC No 30 of 2014. Orders of police protection to execute the decree appear to have been made ex parte in Miscellaneous Application No E006 of 2022. I already stated that using the said orders there was demolition, of the property of Sonrisa. There was an application for recusal of Naikuni J which was dismissed. Since this file is still live, I will refer it back to Naikuni J, to deal with it to its logical conclusion but I will reiterate that any future applications touching on execution of the decree must be filed in the substantive suit.
- The prayer No 9 is for this court to direct the owners of Five Eleven Auctioneers and OCS be investigated for criminal intent. It is impossible to issue this prayer as granted. This is a civil matter. The applicant is requesting the court to cross over to the criminal jurisdiction. If the applicant is of the view that the owners of Five Eleven Auctioneers have committed a crime, then she is at liberty to report the matter to the police station as a way of instituting criminal proceedings.
- In view of the above pronouncements, is there anything remaining to be determined in respect of prayers 9 to 11? I need not say much, other than point out that as ELC 3, is the trial court in this matter, and Naikuni J, is still at the station, it is the right, and I dare say, appropriate court to deal with any outstanding determinations and directions relating to prayers 9 to 11, or any other prayer in the application dated the February 21, 2022, as it was the court that is to deal with that notice of motion to its logical conclusions.