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ELCPartially AllowedEldoret High Court/ELC suit (number not stated in judgment)· [2014] KEELC 354 (KLR)

Daniel Kimeli Kiprono & Another v Hosea K. Kemboi & 2 Others [2014] KEELC 354 (KLR)

Environment and Land Court
19 June 2014
1,849 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court halted further eviction and demolition, ruling you cannot enforce an eviction order meant for someone else, against someone else, on someone else's land.

What this practically means

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Executive summary

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The plaintiffs, sons and administrators of the estate of Moses Kiprono Bett (registered proprietor of the suit land, Turbo West/Osorongai Block 1 (Chepterwai)/3), sued for a permanent injunction after an eviction on 17 July 2013 in which houses were demolished and property worth about Kshs 2,100,000 destroyed. They contended the eviction was carried out pursuant to eviction orders issued in Eldoret CMC Award No. 1 of 2002, a suit between Kipkemboi Busienei and Maritim Kiptui, to which neither they nor their father were parties, and that both parties to that suit were deceased. This ruling determined the plaintiffs' interlocutory injunction application, argued together with a preliminary objection by the 1st and 2nd defendants raising improper enjoinder (for want of letters of administration by the defendants for their late father) and res judicata. The court applied the Giella v Cassman Brown principles. It held the prior suit involved different parties and different subject matter, defeating the res judicata plea. It further held the execution of the 2007 eviction order was procedurally defective: no notice to show cause was issued under Order 22 Rule 18 despite execution more than a year after the order, and the decree holder having died, substitution under Order 24 was required before execution. Finding a prima facie case with a probability of success, the court granted an injunction restraining the defendants from evicting, destroying, demolishing or threatening the plaintiffs pending final determination of the suit. Restoration of the demolished homes was left for trial, with the plaintiffs directed to obtain a quantity surveyor's assessment of the damage. Costs of the application were awarded to the plaintiffs against the defendants.

Key legal issues

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01

Res judicata

Holding

The plea fails because the prior suit involved different parties and different subject matter

Reasoning

Eldoret CMC Award No. 1 of 2002 was between Kipkemboi Busienei and Maritim Kiptui over parcel No. 1. The plaintiffs and their father Moses Bett were never parties to that suit, nor were the eviction orders directed at them. The subject matter of the present suit (parcel No. 3) is different, so the doctrine cannot apply.

p. 3
02

Validity of the execution of the eviction order

Holding

The purported execution was procedurally flawed: no notice to show cause under Order 22 Rule 18 was filed since execution occurred more than a year after the 2007 order, and the decree holder having died, substitution under Order 24 was required first

Reasoning

The eviction order issued on 6 November 2007 was directed at Maritim Kiptui in respect of parcel No. 1. Execution on 17 July 2013, more than a year later, required an application for notice to show cause under Order 22 Rule 18. Kipkemboi Busienei, the decree holder, died on 3 March 2013; proceedings abate on death until substitution, so the 1st and 2nd defendants could not lawfully execute the decree.

p. 3
03

Preliminary objection - improper enjoinder for want of letters of administration

Holding

The court did not uphold the objection; the 1st and 2nd defendants' opposition was considered only through it and the res judicata plea failed

Reasoning

The preliminary objection was condensed into improper enjoinder and res judicata. With no replying affidavit, the court treated the objection as the vehicle of opposition. The res judicata limb failed for different parties and subject matter, leaving the injunction application unopposed on the merits, and the plaintiffs' prima facie case was demonstrated from the material before the court.

p. 2
04

Whether an interlocutory injunction should issue

Holding

Yes - the plaintiffs demonstrated a prima facie case with a probability of success

Reasoning

No material was placed before the court showing the plaintiffs occupy parcel No. 1; the eviction orders did not cover them or the suit land. Even if the plaintiffs were on the defendants' land, the defendants' remedy was to sue for eviction, not self-help. Loss from destruction (about Kshs 2,100,000) would be difficult to quantify, justifying preservation pending trial.

p. 3

Legal principles established

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  • Interlocutory injunctions are granted on the Giella v Cassman Brown principles: prima facie case, irreparable compensable loss, and balance of convenience
  • Execution of a decree after the death of the decree holder, and more than one year after issuance of the order, requires substitution and a notice to show cause under Order 22 Rule 18 and Order 24 of the Civil Procedure Rules
  • A party who believes another occupies their land must file an appropriate eviction suit rather than forcibly evicting them

Court orders

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  1. 1.An order of injunction barring the defendants from evicting, destroying, demolishing or threatening to evict the plaintiffs from the land the plaintiffs occupy, irrespective of whether the defendants think the plaintiffs occupy land parcel No. 1, until final determination of the suit
  2. 2.The plaintiffs directed to engage a quantity surveyor to assess the extent of the damage caused and the cost of restoring the structures
  3. 3.Liberty for the plaintiffs to repair the houses and restore them to a habitable state pending determination of the suit
  4. 4.The defendants to bear the costs of the application

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 22 Rule 18
  • Civil Procedure Rules, 2010Order 24
  • Auctioneers Actgeneral reference (Auctioneers Act and Rules)

Cases cited (1)

  • Giella v Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (interlocutory injunction application)

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, "Daniel Kimeli Kiprono & Another v Hosea K. Kemboi & 2 Others [2014] KEELC 354 (KLR)", Case Analysis (2014). Eldoret High Court/ELC suit (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/354/eng@2014-06-19

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