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ELCAllowedNot stated in the judgment (Originating Summons filed in 2009)· [2017] KEELC 1307 (KLR)

Francis Karatu & another v Thika Garissa Road Developers & another [2017] KEELC 1307 (KLR)

Environment and Land Court
27 October 2017
3,461 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Thika court froze all land transactions on a disputed Thika property and allowed over 1,000 long-time residents to add government bodies to their lawsuit.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Thika (L. Gacheru J) on a Notice of Motion dated 19th July 2016 by the Plaintiffs, over 1,000 residents of suit property LR.4953/1855 (Thika/Municipality Block 31/1 to 250), who claim occupation since allocation in 1964 by Delmonte Co. Ltd (formerly Kenya Canners Ltd). The 1st Defendant holds a certificate of title issued in 1991 and had earlier sued for eviction in CMCC No.1291 of 2005 (Thika). The Plaintiffs sought a temporary injunction against interference with the suit property, an injunction restraining the 2nd Defendant from registering transfers, leave to amend their Originating Summons, and leave to join the Attorney General, the National Land Commission, the Chief Lands Registrar and the County Government of Kiambu. They alleged fraudulent issuance of new certificates of lease over subdivisions during the subsistence of the suit. The 1st Defendant opposed the application as frivolous and delaying, arguing the National Land Commission cannot be enjoined over private land. Applying Order 1 Rule 10(2), Order 8 Rules 3(1) and 5, and the Giella v Cassman Brown principles, the Court held the proposed parties necessary, the amendments necessary for determining the real questions in controversy, and found a prima facie case, irreparable harm and balance of convenience favouring the status quo of Plaintiffs' occupation. The application was allowed entirely in terms of prayers 3, 4, 5 and 6, with costs in the cause. The Chief Land Registrar was expressly restrained from further registrations of the subdivisions until the suit is determined.

Key legal issues

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01

Joinder of necessary parties

Holding

The National Land Commission, Chief Lands Registrar, County Government of Kiambu and the Attorney General were held to be necessary parties whose joinder would not prejudice the Defendants

Reasoning

Matters of allocation and management of land moved from the Commissioner of Lands to the National Land Commission under the Constitution 2010, and registration is done by the Chief Lands Registrar. Since new titles were allegedly issued during the subsistence of the suit by the County Government, these offices and the Attorney General as legal representative of government institutions were necessary for effectual and complete determination of the matter.

p. 4
02

Amendment of pleadings

Holding

The amendments sought (inclusion of joined parties and particulars of alleged misdeeds of third parties) were necessary and would cause no injustice

Reasoning

Applying Order 8 Rules 3(1) and 5 and the Eastern Bakery v Castelino principles, the Court found the amendments would assist in determining the real questions in controversy and no injustice to the other side would result that could not be compensated by costs.

p. 5
03

Temporary injunction

Holding

Injunctions granted on the Giella principles - prima facie case, irreparable harm and balance of convenience favouring the status quo

Reasoning

The Plaintiffs had occupied the land since 1964; a sample title issued in 2015 during the subsistence of the suit was not denied by the 1st Defendant; subdivision and sale before trial would render the suit academic and cause irreparable loss not compensable by damages. The balance of convenience favoured maintaining the status quo of Plaintiffs' occupation.

p. 6

Legal principles established

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  • Joinder is proper where a party's presence is necessary to enable the court effectively and completely adjudicate upon all questions in the suit
  • Amendments to pleadings should be freely allowed at any stage if necessary for the just determination of the controversy and can be compensated by costs
  • Where there are serious conflicts of fact, the trial court should maintain the status quo until the dispute is decided at trial

Court orders

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  1. 1.Temporary injunction restraining the Defendants, interested parties and their agents from entering, encroaching, blocking access to, trespassing on or interfering with the quiet possession of LR.4953/1855 (Thika/Municipality Block 31/1 to 250) pending hearing and determination of the suit (prayer 3)
  2. 2.Injunction restraining the 2nd Defendant from registering any transfer or change of ownership of the suit property, and the Chief Land Registrar restrained from carrying out any further registration of the resultant subdivisions until the matter is heard and determined (prayer 4)
  3. 3.Leave granted to the Plaintiffs to amend the Originating Summons in terms of the draft amended Originating Summons upon payment of requisite fees (prayer 5)
  4. 4.Leave granted to join the Attorney General, the National Land Commission, the Chief Lands Registrar and the County Government of Kiambu as Defendants (prayer 6)
  5. 5.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 100
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 8 Rule 3(1)
  • Civil Procedure RulesOrder 8 Rule 5
  • Registered Land Act (Cap 300, repealed)
  • Constitution of Kenya 2010
  • Land Act
  • National Land Commission Act
  • Land Registration Act

Cases cited (5)

  • John Nahashon Mwangi…Vs…Kenya Finance Bank Ltd (in liquidation)
    eKLR 2015
  • Mechanized Systems Ltd…Vs…Guardian Bank Ltd
    (2005) eKLR
  • Giella…Vs…Cassman Brown & Co. Ltd
    (1973) EA 358
  • Eastern Bakery….Vs…Castelino
    (1958) EA 461
  • Edith Wambui…Vs…Joash Ochieng Ougo
    Civil Appeal No.3 of 1987 (1987) eKLR
Jurisdiction invoked
Civil Procedure Act (Sections 3A and 100) and Civil Procedure Rules (Order 1 Rule 10(2), Order 8 Rules 3(1) and 5)

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, "Francis Karatu & another v Thika Garissa Road Developers & another [2017] KEELC 1307 (KLR)", Case Analysis (2017). Not stated in the judgment (Originating Summons filed in 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1307/eng@2017-10-27

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