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ELCDismissedNot stated in judgment· [2015] KEELC 564 (KLR)

Moses Clement Muhia Njoroge & 2 others v Jane Waithera Lesaloi & 5 others [2015] KEELC 564 (KLR)

High Court of Kenya (Environment and Land jurisdiction, Ngong)
20 March 2015
LGL.N. GACHERU
1,468 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to order eviction and demolition mid-case because the facts were disputed, freezing the land until full trial.

What this practically means

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Executive summary

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The Plaintiffs filed an application dated 8/5/2014 seeking orders that the 2nd, 3rd and 4th Defendants remove structures they had erected on the Plaintiffs' land parcels NGONG/NGONG/50356, 59355 and 59372 (all excised from Original Title NGONG/NGONG/48197), and that the Plaintiffs be permitted to forcefully evict the Defendants and demolish the structures with the assistance of a court bailiff and the OCS Ngong Police Station, with the interim injunction orders of 14/3/2014 remaining in force. The application was supported by the 1st Plaintiff's affidavit, which deposed that after the injunction orders were served on 27/3/2014, unauthorized developments continued on the parcels in defiance of the court orders. The 3rd and 4th Defendants, in a replying affidavit, denied personal service, noted an appeal against the 14/3/2014 ruling, and deposed that the developments were put in place when the District Surveyor concluded survey work on 11/4/2013, and that without physical survey and beacon placement compliance was impractical. They also submitted that the application was misconceived as a review under Order 45 and that granting it would dispose of the suit at an interlocutory stage. The court, per L.N. Gacheru J, noted the matter was convoluted, having been heard in other arbitral tribunals, and that the structures were claimed to predate the orders. Applying Ougo v Otieno, the court held that where serious conflicts of fact exist, status quo should be maintained until trial. The application was dismissed. The court ordered no further developments or demolitions on the suit properties, restrained alienation by any party, directed compliance with Order 11 and expeditious setting down of the suit for hearing, and ordered costs of the application to be in the cause.

Key legal issues

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01

Whether eviction and demolition orders can issue at an interlocutory stage on contested facts

Holding

No; where facts are seriously contested, status quo should be maintained pending trial

Reasoning

The court noted the dispute was convoluted, having been heard in other arbitral tribunals, and that the 3rd and 4th Defendants claimed the structures predated the court orders. The veracity of affidavit evidence had not been tested by cross-examination, so the court applied the principle in Ougo v Otieno, maintaining status quo and directing the parties to full trial.

p. 3
02

Whether the application met the threshold for review under Order 45

Holding

The court did not rule expressly on the review threshold, instead declining the application on the merits of maintaining status quo

Reasoning

The Defendants submitted that the application, brought under Order 45 Rules 1, 2 and 3, did not meet the threshold for review and that the court's jurisdiction was not properly invoked. The court did not resolve this objection but declined the application on the basis of conflicting facts and the need for a full trial.

p. 3

Legal principles established

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  • Where there are serious conflicts of facts, the trial court should maintain status quo until the dispute has been decided at trial (applying Ougo v Otieno)

Court orders

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  1. 1.No further developments or demolitions of any structures on the suit properties pending hearing and determination of the suit
  2. 2.No party shall dispose of or in any way alienate the suit properties pending the hearing and determination of the suit
  3. 3.Parties to comply with Order 11 of the Civil Procedure Rules and the Plaintiffs to set the suit down for hearing without delay
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rules 1, 2 and 3
  • Civil Procedure RulesOrder 11

Cases cited (1)

  • Ougo Vs Otieno & another
    Civil Appeal No. 3 of 1987 (1987) eKLR
Jurisdiction invoked
Not expressly stated; application brought under the Civil Procedure Rules (Order 45 Rules 1, 2 and 3 cited by Defendants)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Moses Clement Muhia Njoroge & 2 others v Jane Waithera Lesaloi & 5 others [2015] KEELC 564 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/564/eng@2015-03-20

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