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ELCPartially AllowedNot stated in the judgment· [2017] KEELC 1221 (KLR)

Kimani Kamau and 4 others, Antonney Ngatia Ndungu & Peter Kahure Ndiritu v Saitoti Ole Mosiro, Land Registrar,Kajiado North District, Chief Land Registrar & Attorney General (Environment & Land Case 441 of 2014) (Environment and Land) [2017] KEELC 1221 (KLR)

Environment and Land Court of Kenya
23 October 2017
1,609 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed contempt, injunction and inhibition bids in a Kajiado land row, but allowed two buyers to join the case.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court dealt with three interlocutory applications arising from a land dispute over parcels in Ngong, Kajiado. The dispute originated from a boundary complaint by the first defendant to the Land Registrar Kajiado, whose determination displeased the plaintiffs, who purchased land from the first defendant in the 1990s. First, the application dated 9th April 2014 by the five plaintiffs seeking injunctive orders restraining the respondents from dealing with their parcels was dismissed. The court found no averment that the surveyor's findings were being implemented, and found the plaintiffs' claim of absence at the survey inconsistent with their assertion that measurements were taken up to the riverbank. Second, the first defendant's application dated 19th June 2015 sought inhibition orders over four subdivided parcels and committal to civil jail of the second plaintiff and the Land Registrar Kajiado for contempt of the consent order of 26th March 2015 maintaining status quo. The court dismissed it, holding that parcel Ngong/Ngong/17957 was never a subject of the consent and the new titles issued before the consent was recorded; nor was there evidence the parcels bordered the first defendant's land, his claim really being one for land with no counter-claim. Third, the application dated 1st November 2016 by two applicants seeking joinder as sixth and seventh plaintiffs, a permanent injunction, and exclusion of their parcels from the consent was allowed only in part: joinder was granted to avoid multiplicity of suits, an amended plaint to be filed within 14 days, but a permanent injunction could not issue at interlocutory stage and the parcels were never subject of the consent. The file was transferred to the Kajiado Environment and Land Court for hearing.

Key legal issues

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01

Contempt of the consent order of 26th March 2015

Holding

No contempt established against the second plaintiff and the Land Registrar Kajiado

Reasoning

Parcel Ngong/Ngong/17957 was never part of the suit properties covered by the consent and had already been subdivided, with the new titles issuing on 6th February 2015, more than a month before the consent was recorded. The applicants for contempt therefore could not show a contravention of the order in respect of those parcels.

p. 2
02

Inhibition orders over the subdivided parcels

Holding

Refused; the application was misconceived

Reasoning

There was no evidence that the four parcels bordered the first defendant's land to found a boundary dispute. His real grievance was that more land than he sold was given to the purchasers, which is a claim for land; having no counter-claim, he could not sustain inhibition orders.

p. 2
03

Joinder of the proposed sixth and seventh plaintiffs

Holding

Allowed

Reasoning

Their presence was necessary because the first defendant asserted the mother title bordered his parcel and ought to have been included in the suit. Joining them avoided multiplicity of suits and protected their interests in the resultant subdivisions.

p. 3
04

Injunction sought in the application dated 9th April 2014

Holding

Dismissed

Reasoning

The applicants complained of the Land Registrar's determination and survey but did not aver any attempt to implement the surveyor's findings. Their claim of absence at the survey was inconsistent with their assertion that measurements were taken up to the riverbank, undermining the application.

p. 3

Legal principles established

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  • A person cannot be held in contempt of an order where the property in question was not affected by that order.
  • A permanent injunction cannot be granted at interlocutory stage.
  • A party whose presence is necessary to avoid multiplicity of suits should be joined as a plaintiff.

Court orders

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  1. 1.Application dated 9th April 2014 dismissed with costs to the respondents
  2. 2.Application dated 19th June 2015 dismissed with costs to the respondents
  3. 3.Application dated 1st November 2016 allowed to the extent that the proposed 6th and 7th plaintiffs are enjoined as plaintiffs; an amended plaint to be filed within 14 days; costs of that application to be costs in the cause
  4. 4.File transferred to Kajiado Environment and Land Court for hearing
Jurisdiction invoked
Environment and Land Court jurisdiction over land situate within Kajiado; suit transferred to Kajiado Environment and Land Court

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, "Kimani Kamau and 4 others, Antonney Ngatia Ndungu & Peter Kahure Ndiritu v Saitoti Ole Mosiro, Land Registrar,Kajiado North District, Chief Land Registrar & Attorney General (Environment & Land Case 441 of 2014)  (Environment and Land) [2017] KEELC 1221 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1221/eng@2017-10-23

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