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ELCPartially AllowedNot stated (suit relating to L.R. No. 10426/7; related suit Nairobi HCCC No. 2316 of 2007)· [2017] KEELC 3709 (KLR)

Nirish Chandalur Shah v Kitangila Limited [2017] KEELC 3709 (KLR)

High Court of Kenya
27 January 2017
OAO. A. Angote
967 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the High Court at Machakos (O. A. Angote, J) dated 27th January 2017 on an application dated 5th March 2015 by a proposed 2nd Interested Party. The applicant, a company whose director swore a detailed affidavit, sought leave to join the suit concerning L.R. No. 10426/7, injunctive orders restraining the Plaintiff and Defendant from dealing with, transferring or subdividing the property, production of certificates of title, joinder of the Commissioner of Lands, a prohibition on further registrations, and setting aside of a consent decree dated 18th July 2013. The applicant alleged that the Plaintiff and Defendant colluded to file and swiftly conclude the suit to steal a march on it, that orders existed in Nairobi HCCC No. 2316 of 2007 relating to the same property, and that it was the lawful proprietor of the suit property. The applicant was the 6th Defendant in that related suit. The Plaintiff and Defendant filed no submissions. The court observed that the application was intertwined with an earlier application dated 14th August 2013, on which it had already ruled, setting aside the decree and directing the two suits to be heard together. Applying parity of reasoning, the court found the applicant had established a prima facie case with chances of success. The application was allowed: the applicant was enjoined as a Defendant, injunctions were issued restraining dealings with the property and its subdivisions pending determination of both suits, all further registrations over the property were prohibited, and costs were awarded against the Plaintiff and Defendant. Some prayers, such as setting aside the consent decree and joining the Commissioner of Lands, were not expressly replicated in the final orders.

Key legal issues

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01

Joinder of a proposed interested party

Holding

The application for joinder was allowed and the applicant was enjoined as a Defendant given its nexus to the suit and the related suit Nairobi HCCC No. 2316 of 2007

Reasoning

The court noted that the application was intertwined with a previous application already ruled upon, and that the applicant was a party to the related suit concerning the same property. Having already set aside the consent decree and directed the two suits to be heard together, the court applied the same reasoning to find the applicant entitled to join the proceedings.

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02

Interim injunctive protection of the suit property

Holding

Injunctions were granted restraining the Plaintiff and Defendant from dealing with L.R. No. 10426/7 and its subdivisions pending determination of both suits

Reasoning

The court found, by parity of reasoning with its ruling on the application dated 14th August 2013, that the applicant had established a prima facie case with chances of success. The collusive conclusion of the suit and existence of orders in the related suit supported the grant of prohibitory injunctive orders including a bar on further registrations.

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Legal principles established

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  • A party to a related suit with a nexus to the suit property may establish a prima facie case warranting injunctive orders by parity of reasoning with the court's earlier ruling on an intertwined application

Court orders

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  1. 1.The 2nd Interested Party/Applicant is enjoined in the suit as a Defendant
  2. 2.The Plaintiff and Defendant, their servants, agents and advocates, are restrained from further dealing in, disposing of, occupying, using, completing by conveyance or transfer, or otherwise interfering with title to or interest in L.R. No. 10426/7 or any subdivided parcels derived from it, pending hearing and determination of this suit and Nairobi HCCC No. 2316 of 2007
  3. 3.All further registration or change of registration of ownership, leasing, subleasing, allotment, user, occupation or possession or any right, title or interest in L.R. No. 10426/7 and its subdivided parcels is prohibited during the pendency of the suit
  4. 4.The Plaintiff and the Defendant to pay the costs of the Application
Jurisdiction invoked
Inherent jurisdiction of the High Court to enjoin interested parties and grant interim injunctive relief pending determination of the 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, "Nirish Chandalur Shah v Kitangila Limited [2017] KEELC 3709 (KLR)", Case Analysis (2017). Not stated (suit relating to L.R. No. 10426/7; related suit Nairobi HCCC No. 2316 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3709/eng@2017-01-27

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