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ELCAllowedNotice of Motion dated 12th April 2013 (suit number not stated in the judgment)· [2014] KEELC 593 (KLR)

Halima Mohamed Abdile & 3 others v Peter Kinyanjui & 38 others [2014] KEELC 593 (KLR)

High Court of Kenya
20 June 2014
2,524 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed you can start a representative lawsuit without prior permission and won protection for Korogocho residents facing demolition.

What this practically means

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Executive summary

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This is a first-instance interlocutory ruling by J. M. Mutungi, J of the High Court, Nairobi, delivered on 20th June 2014 on a Notice of Motion dated 12th April 2013 brought by the Plaintiffs under Order 1 Rule 8, Order 40 Rules 1, 2 and 4(1) and Order 51 Rule 1 of the Civil Procedure Rules. The Plaintiffs, officials and members of the Korogocho Owners Welfare Association (KOWA), sought leave to commence and continue proceedings in a representative capacity on behalf of KOWA members, and interim restraining orders against the Defendants from interfering with their occupation, use, possession and development of plots at Korogocho pending trial. The Plaintiffs relied on long possession since the 1970s, pending litigation over titles (Misc. Civil Application No. 1366 of 2005, dismissed but under appeal), and subsisting Court of Appeal injunctive orders in Civil Application No. 202 of 2010. The Defendants, associated with the Korogocho Residents Committee for Slum Upgrading, alleged KOWA was dissolved in 2005, that the applicants were unelected imposters obstructing a government slum upgrading project, and that no injunction should issue against a public project. The court held Order 1 Rule 8(1) permissive, so no prior leave was required, and that combining leave and injunction prayers was proper. Applying Giella -vs- Cassman Brown, it found a prima facie case, irreparable harm from potential demolition, and balance of convenience favouring the Plaintiffs. Prayers (2) and (5) were granted, notification by newspaper advertisement was directed, and costs were ordered to be in the cause in view of the public-interest character of the suit.

Key legal issues

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01

Leave for a representative suit under Order 1 Rule 8(1)

Holding

The rule is permissive; the Plaintiffs could commence the suit in a representative capacity without prior leave, with notice/directions on service left to the court

Reasoning

The court read Order 1 Rule 8(1) as permitting proceedings where numerous persons share the same interest to be commenced by one or more of them representing all, and Rule 8(2) as directing notice to interested persons so they may opt to be joined. The court therefore held the suit properly instituted and left service/notification directions to itself rather than requiring prior leave.

p. 4
02

Prima facie case with a probability of success

Holding

Demonstrated: Plaintiffs claimed proprietary rights, had pending litigation over titles, and the Court of Appeal injunction in Civil Application No. 202 of 2010 remained in force

Reasoning

The Plaintiffs exhibited the originating summons in Misc. Civil Application No. 1366 of 2005 seeking declaration of ownership and the Court of Appeal ruling in Civil Application No. 202 of 2010 granting injunctive orders pending appeal. Those orders had not been set aside. The Defendants failed to substantiate allegations that the applicants were imposters after the alleged 2005 dissolution of KOWA. The court held it could not issue orders inconsistent with the subsisting appellate injunction.

p. 4
03

Irreparable harm and balance of convenience

Holding

Both favoured the Plaintiffs: long possession since the 1970s meant demolition would cause irreparable loss, while Defendants, not having invested in the government project, would suffer none

Reasoning

The Plaintiffs' assertion of possession since the 1970s was unrebutted. The Defendants admitted the project had already stalled since the Court of Appeal injunction issued, so no further prejudice would flow from restraint, and the project being government-funded meant the Defendants risked no financial loss. Demolition of homes would render execution of any eventual judgment in the Plaintiffs' favour nugatory.

p. 4

Legal principles established

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  • Order 1 Rule 8(1) is permissive: where numerous persons have the same interest, proceedings may be commenced, and continued, by one or more of them representing all, without prior leave unless the court otherwise orders
  • It is proper to combine a prayer for leave to bring a representative action with a prayer for injunctive relief in one application
  • A subordinate court cannot issue orders inconsistent with injunctive orders issued by the Court of Appeal which remain in force and have not been set aside or vacated
  • Persons acting under a government slum upgrading project against which Court of Appeal injunctive orders are in place may equally be restrained from interfering with possession

Court orders

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  1. 1.Prayer (2) of the Notice of Motion dated 12th April 2013 granted (leave to commence and continue proceedings in a representative capacity on behalf of members of KOWA)
  2. 2.Prayer (5) of the Notice of Motion granted (restraining orders against the Defendants, their servants and/or agents from interfering with the Plaintiffs' and KOWA members' occupation, use, possession, construction or development of their respective plots pending hearing and determination of the suit)
  3. 3.Plaintiffs/Applicants to serve notification of the suit on all interested persons by advertisement once in either the Daily Nation or the Standard Newspaper on a weekday, followed by filing of an affidavit of service
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 8(1) and 8(2)
  • Civil Procedure RulesOrder 40 Rules 1, 2 and 4(1)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure Actsections 1A and 1B
  • Societies Actregistration of KOWA

Cases cited (4)

  • Hunker Trading Company Ltd -vs- Elf Oil Kenya Ltd
    Civil Application No. 6 of 2010
  • Voi Jua Kali Association vs- Sange & others
    (2002)474
  • Woodcraft Industries Ltd & 3 others -vs- The East African Building Society
    Nairobi HCCC No. 602 of 2002
  • Giella -vs- Cassman Brown
    (1973)EA 358
Jurisdiction invoked
Order 1 Rule 8, Order 40 Rules 1, 2 and 4(1) and Order 51 Rule 1 of the Civil Procedure Rules; sections 1A and 1B of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Halima Mohamed Abdile & 3 others v Peter Kinyanjui & 38 others [2014] KEELC 593 (KLR)", Case Analysis (2014). Notice of Motion dated 12th April 2013 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/593/eng@2014-06-20

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