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ELCPartially AllowedELC Case of 2016 (Machakos ELC Division)· [2017] KEELC 2551 (KLR)

Francis Nganga Mundia v Isaac Gathungu Wanjohi & 3 others [2017] KEELC 2551 (KLR)

Environment and Land Court
30 June 2017
2,125 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado court froze a disputed Kajiado land parcel for both sides, holding that procedural technicalities cannot defeat justice when competing land titles need a full trial.

What this practically means

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Executive summary

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The Court (Christine Ochieng, J) delivered this first-instance ruling at Kajiado on 30th June, 2017 on two notice of motion applications by the 1st Defendant dated 16th November, 2016 and 15th December, 2016, and a Preliminary Objection by the Plaintiff dated 8th February, 2017, in a land dispute over parcel Kajiado/Kaputiei North/3169. The 1st Defendant sought to set aside, suspend or discharge orders made on 4th November and 1st December, 2016, to restrain the Plaintiff from the suit land, and to have the matter handled in a court able to hear it, complaining that transfer of the court file between the Machakos and Nairobi ELC registries had denied him a fair hearing under Article 50 of the Constitution. The Plaintiff objected that the 1st Defendant had not served his Memorandum of Appearance and Defence and referenced an interlocutory judgement said to have been entered. The Court found no interlocutory judgement had been entered since the plaint disclosed no liquidated claim, and disallowed the Preliminary Objection. It held that the Deputy Registrar's letter confirmed the 1st Defendant's pleadings were paid for at Machakos, and that registry confusion should not be visited on the 1st Defendant. Applying Article 159(2)(d), Sections 1A and 1B of the Civil Procedure Act and Section 19(1) of the ELC Act, the Court disregarded the technical failure of service under Order 7 Rule 1. Applying Giella v Cassman Brown, it found competing claims of title and mutual allegations of fraud raised triable issues, and that the 1st Defendant had established a prima facie case. The Court allowed the applications, ordered registration of an inhibition over the suit parcel, restrained both parties mutually, and made costs of all three applications costs in the cause, urging compliance with Order 11 and fixation of the suit for full trial.

Key legal issues

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01

Whether late service of the Memorandum of Appearance and Defence was fatal

Holding

It was not fatal; procedural technicality should be disregarded under Article 159(2)(d) and Section 19(1) of the ELC Act

Reasoning

The Court applied the overriding objective and Article 159(2)(d) of the Constitution, holding that justice must be administered without undue regard to procedural technicalities. The failure to serve the Memorandum of Appearance and Defence within the prescribed time was a technical procedural rule, and since the pleadings were already properly on record, the 1st Defendant should not be punished for a failure attributable to registry confusion.

p. 4
02

Whether the 1st Defendant was entitled to an interlocutory injunction

Holding

Yes - the 1st Defendant established a prima facie case with a probability of success given competing claims of title and allegations of fraud

Reasoning

Applying the Giella v Cassman Brown principles, the Court found both parties stake a claim on the suit parcel having bought it for valuable consideration, each producing documents of title, and each alleging fraud. These are triable issues best resolved at full trial. The 1st Defendant therefore established a prima facie case with probability of success, justifying an inhibition order and mutual restraint pending determination of the suit.

p. 4
03

Whether interlocutory judgement had been entered against the Defendants

Holding

No interlocutory judgement was entered; the Preliminary Objection was disallowed

Reasoning

The Court perused the file and found a request for judgement dated 2nd December, 2016 filed on 6th December, 2016, but the Deputy Registrar indicated on the face of the request that no interlocutory judgement could be entered as there was no liquidated or pecuniary claim in the plaint. There was no order in the file showing entry of interlocutory judgement, so the Plaintiff's Preliminary Objection failed.

p. 3

Legal principles established

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  • Service of a Memorandum of Appearance and Defence under Order 7 Rule 1 is a rule of technical procedure which should be disregarded where the pleadings are properly on record
  • Where both parties stake competing claims of title to land, triable issues exist and an interlocutory injunction may be granted pending full trial

Court orders

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  1. 1.An inhibition order be registered against land title no. Kajiado/Kaputiei North/3169 pending the hearing and final determination of this suit
  2. 2.The Plaintiff and 1st Defendant, whether by themselves, their servants and agents are hereby restrained from entering or remaining on or howsoever dealing with Kajiado/Kaputiei North/3169 pending the hearing and final determination of this suit
  3. 3.The costs of the Preliminary Objection, Notice of Motions dated 16th November, 2016 and 15th December, 2016 respectively be in the cause
  4. 4.Parties urged to comply with Order 11 and set down the suit for hearing and final determination

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159 (2)(d)
  • Civil Procedure RulesOrder 7 Rule 1
  • Civil Procedure RulesOrder 11
  • Civil Procedure ActSections 1A and 1B
  • Environment and Land Court Act No. 19, 2011Section 3
  • Environment and Land Court Act No. 19, 2011Section 19(1)

Cases cited (1)

  • Giella Vs. Cassman Brown & Co. Ltd
    (1973) EA 358
Jurisdiction invoked
Environment and Land Court Act No. 19 of 2011, Section 3 and Section 19(1); Article 159(2)(d) of the Constitution

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 Nganga Mundia v Isaac Gathungu Wanjohi & 3 others [2017] KEELC 2551 (KLR)", Case Analysis (2017). ELC Case of 2016 (Machakos ELC Division). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2551/eng@2017-06-30

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