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ELCPartially AllowedEmbu ELC (notice of motion dated 26th September 2017 in the suit) - the ruling does not print the suit number· [2018] KEELC 2717 (KLR)

Danson Njiru Jacob v Joseph Njeru Jacob & another [2018] KEELC 2717 (KLR)

Environment and Land Court
14 June 2018
1,741 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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By a plaint filed on 26th September 2017, the Plaintiff sought a declaration that the 2nd Defendant holds title to land parcel Gaturi/Weru/3445 in trust for him, or alternatively a declaration of adverse possession, with costs and interest. Simultaneously he filed a notice of motion seeking an inhibition on the suit property and a temporary injunction restraining his eviction. The 1st Defendant contended he sold the property to Njue Ireri in April 2013 and that the suit was res judicata, having been determined in Embu ELC No. 309 of 2015. The 2nd Defendant, registered owner since April 2016, opposed the application on grounds of non-disclosure, asserting the suit property had been specifically excluded from the reliefs granted in the earlier suit. The court framed three issues: res judicata, temporary injunction, and inhibition. On res judicata, it held section 7 of the Civil Procedure Act was not satisfied because the 2nd Defendant was not a party to the earlier suit and no adjudication on the merits was made over the suit property; the adverse possession claim was also new. Applying Giella v Cassman Brown, the court found a prima facie case with probability of success and irreparable harm not compensable by damages. Relying on Shivabhai Patel v Manibhai Patel, it found it prudent to preserve the subject matter. The court allowed the motion in terms of prayers (2) and (4) - the inhibition and the injunction - with costs in the cause. Ruling delivered at Embu on 14th June 2018 by Y.M. Angima, Judge.

Key legal issues

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01

Whether the suit is res judicata given Embu ELC No. 309 of 2015

Holding

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.

Reasoning

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.

02

Whether the Plaintiff satisfied the requirements for a temporary injunction

Holding

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.

Reasoning

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.

p. 2
03

Whether an order of inhibition should issue under section 68 of the Land Registration Act

Holding

An inhibition is warranted to preserve the subject matter of the dispute pending the hearing and determination of the suit.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Plaintiff's notice of motion dated 26th September 2017 is allowed in terms of prayers (2) and (4) thereof
  2. 2.An inhibition is placed on land parcel No. Gaturi/Weru/3445 pending the hearing and determination of the main suit
  3. 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. 4.Costs of the application shall be in the cause

Authorities

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Legislation

  • Land Registration Actsection 68
  • Civil Procedure Actsections 1A, 3A and 7
  • Civil Procedure RulesOrder 50 Rule 10
  • Limitation of Actions ActCap 22 (adverse possession provisions)

Cases cited (2)

  • Giella Vs Cassman Brown & Co Ltd
    [1973] EA 358
  • Shivabhai Patel Vs Manibhai Patel
    [1959] EA 907
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

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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, "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.