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ELCPartially AllowedNotice of Motion dated 4th July 2017 (arising from Notice of Motion dated 22nd November 2016)· [2017] KEELC 813 (KLR)

Win Njoki Kori v James Kianja Karanja & another [2017] KEELC 813 (KLR)

Environment and Land Court
1 November 2017
2,167 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 granted a review of its own ruling but still dismissed the land injunction because the application never clearly identified the plot it sought to protect.

What this practically means

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Executive summary

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The plaintiff applied by Notice of Motion dated 4th July 2017 under Order 45 rule 1 of the Civil Procedure Rules for review of the ruling and order of 22nd June 2017, which had dismissed her application for an interlocutory injunction dated 22nd November 2016. She contended that the ruling was delivered without the court realizing that an amended plaint and a further affidavit had been filed on 29th March 2017, showing that the suit property Gilgil/Gilgil Block 1/3950 had been subdivided into Gilgil/Gilgil Block 1/34615, and that the injunction ought therefore to be granted. The 1st defendant, though served, did not respond or appear. The court held that the amended plaint and further affidavit were indeed filed but were not in the court file when the ruling was written and delivered, and that documents not placed in the court file do not form part of the record; accordingly a mistake or error apparent on the face of the record was established and the ruling was reviewed. On reconsideration of the injunction application on the merits, including the amended pleadings, the court applied the Giella v Cassman Brown and Nguruman tests. Although the plaintiff proved title to Gilgil/Gilgil Block 1/34615, the unamended Notice of Motion sought to protect only the 'parcel of land adjacent to Gilgil/Gilgil 1/3950', leaving the identity of the plot unclear. No prima facie case was therefore established, and irreparable injury and balance of convenience did not fall for consideration. The court also noted that a second defendant had been added without leave and without proof of service. The review was granted, but the injunction application was dismissed with costs to the first defendant.

Key legal issues

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01

Review under Order 45 rule 1 on the ground of mistake or error apparent on the face of the record

Holding

Review granted because the amended plaint and further affidavit, though filed on 29th March 2017, were not in the court file when the ruling of 22nd June 2017 was written and delivered, so the court decided the application without them.

Reasoning

The court found that paying for and stamping pleadings is one step in filing; actually placing them in the court file is the final step. Since the amended plaint and further affidavit were not in the file at the time of the ruling, the court did not consider them, constituting a mistake or error apparent on the face of the record justifying review. The court however cautioned against the practice of carrying documents to be placed in the file on the hearing day.

p. 3
02

Whether the plaintiff established a prima facie case for an interlocutory injunction

Holding

No prima facie case was established because, even after amendment, the identity of the plot to be protected by the injunction was unclear, the application not having been amended to reflect the new plot number.

Reasoning

While the plaintiff proved registration of Gilgil/Gilgil Block 1/34615 by title deed and levelled accusations of trespass and destruction against the first defendant, the Notice of Motion dated 22nd November 2016 was never amended and still sought to protect the 'parcel of land adjacent to Gilgil/Gilgil 1/3950'. After amendment, what the adjacent parcel meant remained unclear, so the court could not identify the property the injunction would protect and declined to proceed to the other Giella/Nguruman limbs.

p. 4

Legal principles established

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  • Pleadings and documents do not form part of the court record unless actually placed in the court file; a party bears ultimate responsibility for ensuring its case is properly pleaded and on the record.
  • An interlocutory injunction requires the applicant to sequentially establish a prima facie case, irreparable injury not compensable by damages, and balance of convenience; failure at the first stage disposes of the application.

Court orders

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  1. 1.The ruling and order of court dated 22nd June 2017 reviewed
  2. 2.Notice of Motion dated 22nd November 2016 dismissed with costs to the first defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 rule 1

Cases cited (3)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Kenya Commercial Finance Co. Ltd V. Afraha Education Society
    [2001] Vol. 1 EA 86
Jurisdiction invoked
Order 45 rule 1 of the Civil Procedure Rules (application for review of decree or order)

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, "Win Njoki Kori v James Kianja Karanja & another [2017] KEELC 813 (KLR)", Case Analysis (2017). Notice of Motion dated 4th July 2017 (arising from Notice of Motion dated 22nd November 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/813/eng@2017-11-01

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