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ELCAllowedApplication dated 9th November 2016 (suit plot NAROK TOWNSHIP BLOCK 4/84, also known as Block 4/251)· [2017] KEELC 492 (KLR)

Nazirali Musa Haji v County Government of Narok & another [2017] KEELC 492 (KLR)

Environment and Land Court
10 November 2017
MKMohamed N. Kullow
808 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Narok allowed an estate administrator to join a land dispute, cancelled orders obtained by hiding a pending case, and stopped construction on the plot.

What this practically means

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Executive summary

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This was a ruling on a Notice of Application dated 9th November 2016 at the Environment and Land Court at Narok, in a dispute over plot NAROK TOWNSHIP BLOCK 4/84 (also known as Block 4/251). Harun Lempaka, suing as legal representative (administrator) of the estate of Anna Koin Lempaka, sought to be joined as 2nd Defendant, to set aside or suspend orders issued on 20th September 2016, and to restrain the Plaintiff from constructing on, entering or remaining on the suit plot. He relied on a grant of letters of administration in Nairobi High Court Succession Cause No. 2066 of 1999, a 1985 purchase from Charles Ongau Mogesi evidenced by a sale agreement, and payment of rates to the 1st Defendant since 2003. The Respondent opposed, but the parties agreed to dispose of the application by written submissions. The court framed three issues: joinder, vacation of the orders, and injunction. On joinder, the court applied the test of whether the suit's outcome would affect the applicant, finding the Applicant had an identifiable interest as administrator of the estate. On vacation of the orders, the court found material non-disclosure - the party obtaining the orders failed to disclose a pending suit at the Narok Magistrate's Court - and, invoking the clean hands maxim, exercised its discretion to vacate them. On injunction, the court found a prima facie case with probability of success. All prayers were allowed, the Defence and counter claim were deemed filed, and costs were made costs in the cause. Judgment was delivered at Narok on 10th November 2017 by Mohamed N. Kullow, Judge.

Key legal issues

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01

Joinder of the Applicant as 2nd Defendant

Holding

Joinder allowed; the Applicant demonstrated an identifiable interest as administrator of the estate of the purchaser of the suit plot

Reasoning

The court applied the test of whether the outcome of the suit would affect the applicant. The Applicant showed he is administrator of the estate of his late wife, who purchased the plot from a third party in 1985, so any order or judgment would affect him and the estate.

p. 2
02

Vacating the orders of 20th September 2016

Holding

Orders vacated on grounds of material non-disclosure by the Respondent, who failed to disclose a pending suit at the Narok Magistrate's Court

Reasoning

The test is whether the party obtaining the order was guilty of material non-disclosure or fraud. The Respondent deliberately omitted the existence of the Narok Magistrate's Court suit to hoodwink the court; equity demands clean hands, so the discretion was exercised to vacate the orders.

p. 2
03

Injunction against the Plaintiff

Holding

Granted; the Applicant demonstrated a prima facie case with probability of success

Reasoning

Having been joined and having the prior orders set aside, the Applicant established a prima facie case with probability of success, satisfying the conventional test for an interlocutory injunction pending hearing of the suit.

p. 2

Legal principles established

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  • The test for joinder is whether the determination of the issue in dispute will affect the party applying to be enjoined
  • A party who obtains an injunction through material non-disclosure or fraud is liable to have it set aside, under the clean hands maxim

Court orders

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  1. 1.Harun Lempaka be joined as the 2nd Defendant
  2. 2.The orders granted by the court on 20th September 2016 are hereby set aside
  3. 3.An order of injunction restraining the plaintiff from constructing, removing and/or dealing with the suit land pending the hearing and determination of the suit
  4. 4.The Applicant's Defence and counter claim filed with the Application are deemed to be duly filed and be served on the Respondents, who are granted leave to reply
  5. 5.Costs be in the cause
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit plot (interlocutory application in a pending land suit)

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, "Nazirali Musa Haji v County Government of Narok & another [2017] KEELC 492 (KLR)", Case Analysis (2017). Application dated 9th November 2016 (suit plot NAROK TOWNSHIP BLOCK 4/84, also known as Block 4/251). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/492/eng@2017-11-10

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