Ngaga Enterprises Limited v Teresa Kwamboka Isanda & 2 others [2018] KEELC 2064 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Validity of the replying affidavit challenged by preliminary objection
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
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.
Locus standi of the defendants vis-à-vis the deceased Peter Opande
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
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.
Prima facie case for temporary injunction
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
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.
Legal principles established
#- 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
#- 1.The preliminary objection dated 28th March 2018 is dismissed with costs to the defendants
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.