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ELCDismissedNot stated in judgment (application dated 9th February 2018)· [2018] KEELC 2064 (KLR)

Ngaga Enterprises Limited v Teresa Kwamboka Isanda & 2 others [2018] KEELC 2064 (KLR)

High Court of Kenya
12 July 2018
1,428 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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The plaintiff brought a Notice of Motion dated 9th February 2018 seeking a temporary injunction restraining the defendants from interfering with his quiet possession and ownership of parcel No. 9230/6, and in the alternative, eviction of the defendants and entry of summary judgment. Before the application was heard, the plaintiff filed a preliminary objection dated 28th March 2018 seeking to strike out paragraphs 4 to 26 and annexures of the 1st defendant's replying affidavit, contending lack of jurisdiction and that the defendants lacked locus standi to claim on behalf of Peter Opande (deceased). The court dismissed the preliminary objection as misplaced, holding that the replying affidavit was proper since the matters deponed to were of public record (HCCC No 796 of 2009) and within the deponent's knowledge, and that the defendants, being the wife and children of the deceased, should be sued as his administrators given possession flowed from a purchase agreement. On the motion, the court refused eviction orders at interlocutory stage, held that summary judgment was untenable since the plaintiff must formally prove his case, and found no prima facie case for an injunction: the plaintiff held a title but admitted the defendants had been in occupation since 2005 under a sale agreement with the deceased, and a related suit in Nairobi (Milimani HCCC No 796 of 2009) seeking the same orders was outstanding. Both the preliminary objection and the application were dismissed with costs to the defendants.

Key legal issues

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01

Validity of the replying affidavit challenged by preliminary objection

Holding

The replying affidavit is properly on record; the matters deponed to are within the deponent's knowledge and supported by annexed pleadings, and do not amount to hearsay

Reasoning

The court found that the issues raised in the affidavit are public and can be ascertained from court file No 796/09. The deponent annexed copies of the plaint and defence from the Nairobi suit, assisting the court to determine the real issues, so the affidavit is proper before the court.

p. 1
02

Locus standi of the defendants vis-à-vis the deceased Peter Opande

Holding

The objection is misplaced; the defendants are the wife and children of the deceased, and any suit concerning the estate should be brought against them as administrators of the deceased who gave them possession under a purchase agreement

Reasoning

Counsel admitted in submissions that the defendants are the wife and children of the deceased. Since possession flowed from a sale agreement entered into by the deceased, the plaintiff should sue the defendants as administrators of the estate rather than object to their standing.

p. 2
03

Prima facie case for temporary injunction

Holding

No prima facie case established; the plaintiff's title is clouded by admitted occupation since 2005 and the existence of HCCC No 796 of 2009 seeking the same orders

Reasoning

Although the plaintiff annexed a certificate of title, he admitted in the plaint and supporting affidavit that the defendants are in occupation. An injunction would operate as eviction at interlocutory stage causing irreparable harm. The pending Nairobi suit over the same land and parties casts a cloud the plaintiff sought to avoid.

p. 2

Legal principles established

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  • Granting an injunction against a defendant in occupation of land amounts to an eviction order at interlocutory stage and would cause irreparable harm
  • Eviction orders cannot be granted at interlocutory stage where the suit has not been heard
  • Even where a defendant does not enter appearance, the plaintiff is still under a duty to formally prove his case

Court orders

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  1. 1.The preliminary objection dated 28th March 2018 is dismissed with costs to the defendants
  2. 2.The plaintiff's Notice of Motion dated 9th February 2018 seeking temporary injunction, eviction and summary judgment is dismissed with costs to the defendants
Jurisdiction invoked
Inherent jurisdiction of the High Court over land disputes (not expressly stated in the judgment)

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, "Ngaga Enterprises Limited v Teresa Kwamboka Isanda & 2 others [2018] KEELC 2064 (KLR)", Case Analysis (2018). Not stated in judgment (application dated 9th February 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2064/eng@2018-07-12

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