Danson Njiru Jacob v Joseph Njeru Jacob & another [2018] KEELC 2717 (KLR)
The bottom line
#Kenya's Environment and Land Court in Embu blocked eviction and froze land dealings, ruling an earlier case could not bar a fresh land claim.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata given Embu ELC No. 309 of 2015
The suit is not res judicata because the 2nd Defendant, the registered owner, was not party to the earlier suit and no adjudication on the merits was made in respect of the suit property.
Section 7 of the Civil Procedure Act requires the matter to have been directly and substantially in issue, between the same parties, and heard and finally decided. In Embu ELC No. 309 of 2015 the court found the suit property had been transferred to a third party who was not joined, so it made no determination over it. The new claim for adverse possession under the Limitation of Actions Act was also not raised in the previous proceedings, defeating res judicata on that additional ground.
Whether the Plaintiff satisfied the requirements for a temporary injunction
The Plaintiff demonstrated a prima facie case with probability of success and irreparable harm not compensable by damages, satisfying the Giella v Cassman Brown principles.
The Plaintiff has been in possession of the suit property for a long time and has pending claims for a declaration of trust and, alternatively, adverse possession. Whether he will establish those claims are matters for trial. If evicted during the pendency of the suit he might suffer loss which cannot be adequately compensated by damages, satisfying the second Giella principle.
Whether an order of inhibition should issue under section 68 of the Land Registration Act
An inhibition is warranted to preserve the subject matter of the dispute pending the hearing and determination of the suit.
The Plaintiff has a pending suit seeking an interest in the suit property through a declaration of trust or adverse possession. Relying on Shivabhai Patel v Manibhai Patel, the court held it is the duty of the court to preserve disputed property. It found it necessary and prudent to preserve the subject matter until the suit is heard and determined.
Legal principles established
#- Res judicata requires that the matter in issue was directly and substantially in issue in a former suit between the same parties or parties claiming under them, litigating under the same title, heard and finally decided by a competent court.
- A suit cannot be res judicata where a necessary party (the registered proprietor) was not joined in the previous suit and no adjudication on the merits was made on that property.
- It is the duty of the court to preserve property which is the subject of a dispute pending hearing and determination of the suit.
Court orders
#- 1.The Plaintiff's notice of motion dated 26th September 2017 is allowed in terms of prayers (2) and (4) thereof
- 2.An inhibition is placed on land parcel No. Gaturi/Weru/3445 pending the hearing and determination of the main suit
- 3.The Defendants are restrained by way of temporary injunction from evicting the Plaintiff from land parcel No. Gaturi/Weru/3445 pending the hearing and determination of the main suit
- 4.Costs of the application shall be in the cause
- Jurisdiction invoked
- Original civil jurisdiction under the Environment and Land Court Act over the suit land Gaturi/Weru/3445; interlocutory application under section 68 of the Land Registration Act, sections 1A and 3A of the Civil Procedure Act and Order 50 Rule 10 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Danson Njiru Jacob v Joseph Njeru Jacob & another [2018] KEELC 2717 (KLR)", Case Analysis (2018). Embu ELC (notice of motion dated 26th September 2017 in the suit) - the ruling does not print the suit number. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2717/eng@2018-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.