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ELCPartially AllowedNot stated in the judgment as provided· [2018] KEELC 2226 (KLR)

Gichugu Laikipia Property Investment Co. Ltd v Njuguaka Property Investment Ltd [2018] KEELC 2226 (KLR)

Environment and Land Court
30 July 2018
2,489 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Plaintiff, through a Notice of Motion dated 8th August 2016 under Order 40 Rules 1 and 2 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, sought an interlocutory injunction restraining the Defendant from trespassing on, offering for sale, alienating or otherwise interfering with parcels of land (subdivisions of parcel No. 8033/2) on which the Plaintiff claimed to have been in possession since purchase from Sosian Ranch Ltd in 1994 for Ksh. 3,250,000, fully paid, though transfer was never effected. The Defendant opposed, filing a Notice of Preliminary Objection dated 30th September 2016 arguing the suit was sub judice given Millimani Environment and Land Court Case No. 1838 of 2007, in which the same Plaintiff had sued Sosian Ranch Ltd for specific performance, and sought striking out. The court, applying the Mukisa Biscuits definition of a preliminary objection and Section 6 of the Civil Procedure Act, found that although the subject matter overlapped and the plaintiff was common, the defendants differed, and critically the Millimani suit had been dismissed for want of prosecution on 25th May 2015, with the application to set aside dismissed by ruling of 4th/5th July 2018. No suit was pending, so neither sub judice nor res judicata applied; the objection failed. On the injunction, applying Giella v Cassman Brown and the Mrao definition of a prima facie case, the court found documents JNKG 5A and 5B established a prima facie case: the Defendant had included some of the Applicant's parcels in a letter of consent dated 22nd November 2012 and a sale agreement dated 9th November 2012 with Nyasore Ltd. The injunction was granted, the application allowed with costs to the Plaintiff, and parties directed to comply with Order 11 within 30 days.

Key legal issues

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01

Sub judice / Section 6 Civil Procedure Act and the preliminary objection

Holding

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

Reasoning

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.

p. 2
02

Whether the Applicant established a prima facie case for an interlocutory injunction

Holding

The Applicant made out a prima facie case that the Defendant infringed its rights; interlocutory injunction granted

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Preliminary Objection dated 30th September 2016 is dismissed
  2. 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. 3.The application dated 8th August 2016 succeeds with costs to the Plaintiff/Applicants
  4. 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

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure ActSection 6
  • Civil Procedure RulesOrder 11
  • Constitution of KenyaArticle 159(2)(a),(b),(c),(d)

Cases cited (4)

  • Mukisa Biscuits Manufacturing Co. Ltd –v- West End Distributors Limited
    (1969) EA. 696
  • Giella vs Cassman Brown
    [1973] EA 358
  • E.A. Industries v. Trufoods
    [1972] E.A. 420
  • MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    (2003) KLR 125
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

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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, "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.