Gichugu Laikipia Property Investment Co. Ltd v Njuguaka Property Investment Ltd [2018] KEELC 2226 (KLR)
The bottom line
#The court allowed a landowner to block a rival from selling disputed Sosian Ranch parcels, ruling a dismissed case cannot be revived as a 'sub judice' objection.
What this practically means
#Executive summary
#Key legal issues
#Sub judice / Section 6 Civil Procedure Act and the preliminary objection
The preliminary objection fails; no suit was pending in the Millimani court as it had been dismissed for want of prosecution and the setting-aside application was dismissed
The court applied the Mukisa Biscuits definition of a preliminary objection, then examined the file in Millimani ELC No. 1838 of 2007. Although the plaintiff was the same in both suits, the defendants were distinct. The prior suit had been dismissed for want of prosecution on 25th May 2015 and the motion to set aside that dismissal was dismissed on 4th/5th July 2018. With no suit pending, neither sub judice nor res judicata could be invoked.
Whether the Applicant established a prima facie case for an interlocutory injunction
The Applicant made out a prima facie case that the Defendant infringed its rights; interlocutory injunction granted
Applying Giella v Cassman Brown and Mrao v First American Bank, the court noted both parties bought 500 acres each from Sosian Ranch Ltd. The Defendant entered a sale agreement dated 9th November 2012 with Nyasore Ltd and obtained a consent dated 22nd November 2012 that included some of the Applicant's parcels. Documents JNKG 5A and 5B showed infringement of the Applicant's rights, and an injunction was necessary to preserve the suit property since part payment had been made.
Legal principles established
#- A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained
- Neither sub judice (Section 6 Civil Procedure Act) nor res judicata can be invoked where the previously instituted suit was dismissed before it was heard and determined
- Conditions for an interlocutory injunction: prima facie case with probability of success, irreparable injury not compensable in damages, and balance of convenience
Court orders
#- 1.The Preliminary Objection dated 30th September 2016 is dismissed
- 2.An injunction restraining the Defendants, their agents, licensees and representatives from trespassing, entering, remaining on, offering for sale, disposing of, alienating, letting out or otherwise interfering with the Applicant's possession, ownership and occupation of the suit land parcels pending the hearing and determination of the main suit
- 3.The application dated 8th August 2016 succeeds with costs to the Plaintiff/Applicants
- 4.Parties to comply with Order 11 of the Civil Procedure Rules within 30 days so that the matter can be set down for hearing
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court under the Civil Procedure Act and Civil Procedure Rules (Order 40 Rules 1 and 2; Sections 1A, 1B and 3A)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gichugu Laikipia Property Investment Co. Ltd v Njuguaka Property Investment Ltd [2018] KEELC 2226 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2226/eng@2018-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.