Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 25th February 2015 (in the main suit, plaint dated 25th February 2015)· [2017] KEELC 139 (KLR)

Harrison G Mwandoe another v Chairman, Secretary, Treasurer – Choke Ranch & 2 others [2017] KEELC 139 (KLR)

Environment and Land Court
17 October 2017
LKL. KOMINGOI
1,398 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to stop a land dispute over 'Lusharunyi' because the claimants couldn't clearly identify or survey the land they claimed.

What this practically means

#

Executive summary

#
This is a ruling on a Notice of Motion dated 25 February 2015 seeking a temporary injunction restraining the 1st and 2nd Defendants from encroaching on or interfering with family land known as 'Lusharunyi' in Mwatate location, said to measure 50,000 acres, and on a Notice of Preliminary Objection dated 25 August 2015 contending that the suit was incompetently brought as a representative suit without leave under Order 1 Rule 8 of the Civil Procedure Rules, and that the Defendants had no capacity to be sued through their offices. The court canvassed both by written submissions. On the preliminary objection, the court held that although the plaintiffs admittedly acted on behalf of unnamed family members without leave, the failure was not fatal; Order 1 Rule 9 provides that no suit shall be defeated by misjoinder or nonjoinder of parties, and following D.T. Dobie & Co Ltd v Muchina, defects curable by amendment should not lead to summary dismissal. The objection was dismissed. On the injunction, applying Giella v Cassman Brown, the court found the description of the unsurveyed land too vague, held that no prima facie case with probability of success was demonstrated, and that irreparable injury was not shown since damages could compensate. The application was dismissed, with costs to abide the outcome of the main suit. Judgment was delivered at Mombasa on 17 October 2017.

Key legal issues

#
01

Whether failure to obtain leave for a representative suit under Order 1 Rule 8 warrants striking out

Holding

Not fatal; the plaintiffs should be given an opportunity to ventilate their claim at full hearing

Reasoning

The court noted that leave was admittedly not sought before filing. However, the claim is historical and should be ventilated. Order 1 Rule 9 provides that no suit shall be defeated by misjoinder or nonjoinder of parties. Guided by the principle that suits curable by amendment should not be summarily dismissed, and Article 159(2) on access to justice, the objection was dismissed.

p. 2
02

Whether the conditions for a temporary injunction were satisfied

Holding

No; no prima facie case, no irreparable injury, and land description too vague

Reasoning

Applying Giella v Cassman Brown, the court found the land description ('Lusharunyi', approx. 2 km from Choke Ranch, south of Mwatate Sisal Estate, unsurveyed) too vague, so no prima facie case was demonstrated. Irreparable injury was not shown since damages would compensate, and court orders ought not to be made in vain.

p. 3

Legal principles established

#
  • Failure to seek leave before instituting a representative suit under Order 1 Rule 8 is not fatal where the matter ought to proceed to full hearing; Order 1 Rule 9 requires that no suit be defeated by misjoinder or nonjoinder of parties.
  • A suit with defects curable by amendment ought not to be summarily dismissed.

Court orders

#
  1. 1.The preliminary objection dated 25/8/2015 is dismissed.
  2. 2.The Notice of Motion dated 25/2/2015 seeking a temporary injunction is dismissed.
  3. 3.Costs shall abide the outcome of the main suit.

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 40 Rule (2)
  • Civil Procedure Rules, 2010Order 1 Rule 8
  • Civil Procedure Rules, 2010Order 1 Rule 9
  • Constitution of Kenya, 2010Article 159(2)

Cases cited (3)

  • Sonko And Others –versus- Haluna And Another
    EALR (1970) 443
  • D.T.Dobie & Compny Ltd –verssus- Muchina
    (1982) KLR
  • Giella –versus- Cassman Brown And Company Limited
    (1973) EA 358
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act and Order 40 Rule (2) of the Civil Procedure Rules; Article 159(2) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Harrison G Mwandoe another v Chairman, Secretary, Treasurer – Choke Ranch & 2 others [2017] KEELC 139 (KLR)", Case Analysis (2017). Notice of Motion dated 25th February 2015 (in the main suit, plaint dated 25th February 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/139/eng@2017-10-17

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