REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA
ELC NO E002 OF 2026
MILKA WANGUI WAWERU.......................................................PLAINTIFF
VERSUS
BIASHARA SACCO SOCIETY LIMITED & 2 OTHERS...DEFENDANTS
RULING
In the Application dated 24/4/2026, the Defendants seek for orders against the Plaintiff that the suit herein be struck out for being incomplete, scandalous, frivolous, vexatious, incompetent and an abuse of the Court process, the same having been canvassed by way of a Notice of Motion without an accompanying Plaint or other proper pleadings as required by law.
And in the alternative, the suit and Application be dismissed for want of prosecution.
Thirdly, that the Court holds that the subject matter of the suit has been overtaken by events, the auction sought to be restrained having not occurred and the orders sought having been rendered nugatory. Costs of the Application and the entire suit have been sought to be awarded to the 1st and 2nd Defendants.
The grounds supporting the Application are that the Plaintiff is seeking substantive orders on the basis of a Notice of Motion without an underlying Plaint, suit or claim to base it on, an abuse of Court process making it incomplete, fatally defective and incompetent in spite of the Plaintiff being granted time to regularize the suit severally.
The auction to be averted was to take place on 5/11/2025, about 1 ½ months now rendering the Application overtaken by events and the Plaintiff has all along failed to attend Court to prosecute her suit. The aforementioned auction never took place as shown in the attached Supporting Affidavit of Mark Ng’ang’a Githiru, Advocate for the 1st and 2nd Defendants sworn on 24/4/2026.
I agree with the 1st and 2nd Defendants that ever since the Plaintiff brought this “suit” under a certificate of urgency, she has never attended Court and the Court does not have a copy of her Plaint save the Originating Notice of Motion dated 9/1/2025. In Solomon Macharia Vs The B.O.M Karagoini Nursery School, Nyandarua Elc Misc. No. E001 of 2026 and in Nyamira ELC Miscellaneous Case No. E007 of 2023, I held:
“under Order 3 Rule 1 (1) of the Civil Procedure Rules:
every suit shall be instituted by presenting a Plaint to the court, or in such other manner as may be prescribed.
Other ways of presenting a suit in court are by way of: -
• Judicial Review.
• Originating Summons.
• Petition.
• Memorandum of Appeal.
• Originating Motion.
• Appeal.
Not by way of a Notice of Motion. Miscellaneous Civil Application is not one of them. In the Case of Fidelity Bank Limited vs John Joel Kanyali (2014) e KLR the court held as follows: -
“ ……. A Notice of Motion is not a manner prescribed for instituting a suit. It cannot be a pleading as defined in Cap 21 and its Rules. Accordingly, there is no suit before court which suit can sustain the Notice of Motion.”
Similarly, there is no suit in court that is capable of ascertaining the rights of either party or how such rights have been trodden upon and this court cannot proceed with the matter as it is. In the instant Motion, it is difficult to determine the rights of either party and the Applicant is undeserving of the prayers sought. No right can be determined by way of a Notice of Motion. A Notice of Motion is normally for interlocutory issues or execution or any other post – Judgment process. Not to determine rights and therefore there is no suit before me to determine any rights and calling this Court to jump the trial stage and proceed to execution under Orders 22 and 23 of the Civil Procedure Rules is putting a cart before the horse………………..”
Accordingly, the Notice of Motion dated 24/4/2026 is hereby stuck out and I agree with the Defendant that what is before the Court christened as a suit is grossly incompetent, incurably defective and an abuse of the process of this Court and the same is hereby struck out with costs.
Ruling dated, signed and delivered at Nyandarua this 16th Day of July, 2026.
MUGO KAMAU
JUDGE
In the Presence of: -
Court Assistant: Samson.
For the Plaintiff………….N/A.
Defendants’ Counsel…….Mr. Githiru.
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