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ELCPartially AllowedNot stated in the judgment· [2018] KEELC 3064 (KLR)

Joseph Wanjala Lutta v Attorney General & 2 others [2018] KEELC 3064 (KLR)

Environment and Land Court
31 May 2018
NMN.A. MATHEKA
1,819 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicant, personal legal representative of the estate of Emmanuel Lutta (deceased), sued the Attorney General over land parcel South Wanga/Ekero/869, later subdivided into South Wanga/Ekero/2301 and 2302, claiming it had been compulsorily acquired without compensation. By a notice of motion dated 25th May 2017 under Order 1 rule 10, Order 40 rules 1 & 2 (misprinted as 'order 90') and Order 51 rule 1 of the Civil Procedure Rules, she sought to enjoin Nitunze Savings and Credit Co-operative Society Limited as co-defendant/interested party and to restrain the SACCO and the Government from dealing with South Wanga/Ekero/2302, now allegedly comprised in LR 8056/326 Mumias Town, pending hearing of the suit. The SACCO had entered the land on 19th April 2017, clearing and subdividing it, claiming allocation by the Government. The respondent opposed, relying on section 16 of the Government Proceedings Act (no injunctions against the Government) and Order 29 rule 2(2)(d) of the Civil Procedure Rules, and argued that the SACCO could not be bound without amendment of the pleadings. Applying Giella v Cassman Brown and Mrao v First American Bank, Matheka J held that the applicant had not established a prima facie case with probability of success or irreparable injury, that injunctions cannot issue against the Government, and that the court could not make orders in vain given the unclear location of the parcels. However, since the SACCO was established to be on the ground subdividing the land, it was enjoined as co-defendant, with costs in the cause.

Key legal issues

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01

Whether the applicant met the Giella v Cassman Brown conditions for a temporary injunction

Holding

The application failed: the applicant did not establish a prima facie case with probability of success nor irreparable injury not compensable by damages

Reasoning

The court applied the settled Giella v Cassman Brown criteria and Mrao's definition of a prima facie case. On the material presented, the applicant had not demonstrated an apparent infringement of a right calling for explanation, nor that damages would be inadequate. The unresolved uncertainty over the identity/location of the parcels (South Wanga/Ekero/2302 versus LR 8056/326) further undermined the claim, and injunctions cannot issue against the Government under section 16 of the Government Proceedings Act.

p. 3
02

Whether injunctive relief can issue against the Government

Holding

No; section 16 of the Government Proceedings Act, Cap 40 prohibits injunctions against the Government, which may only be granted declaratory relief in such circumstances

Reasoning

The respondent's grounds of opposition invoked section 16 of the Government Proceedings Act and Order 29 rule 2(2)(d) of the Civil Procedure Rules. The court accepted that it cannot grant an injunction against the Government in civil proceedings; in lieu the court may make an order declaratory of the parties' rights. This independently barred the injunction against the defendant.

p. 2
03

Whether the intended co-defendant should be joined as a party

Holding

Yes; since the SACCO was established to be on the ground and subdividing the land, joinder was necessary for determination of the real issues in dispute

Reasoning

Under Order 1 rule 10 of the Civil Procedure Rules a person whose presence is necessary for the complete determination of the dispute may be joined. The SACCO claimed allocation of LR 8056/326 and was actively clearing, fencing and subdividing the land. Its presence was therefore necessary to resolve the competing claims over the suit property.

p. 3

Legal principles established

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  • A party that is actively dealing with the suit property on the ground and whose presence is necessary for determination of the dispute should be enjoined as a co-defendant

Court orders

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  1. 1.Nitunze Savings and Credit Co-operative Society Limited be enjoined as a co-defendant to this suit
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 10
  • Civil Procedure RulesOrder 40 rules 1 & 2 (cited in the judgment as 'order 90 rule 1 & 2')
  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure RulesOrder 29 rule 2(2)(d)
  • Government Proceedings Act, Cap 40Section 16

Cases cited (5)

  • Giella v Cassman Brown
    [1973] EA 358
  • Michael Githinji Kimotho v Nicholas Muratha Mugo
    [1997] eKLR
  • Mrao v First American Bank of Kenya and Two Others
    [2003] KLR 125
  • Samson Aliton Okello v Barclays Bank
    [2009] eKLR
  • Francis J.K. Ichatha v HFCK
    CA No. 108 of 2005
Jurisdiction invoked
Order 1 rule 10, Order 40 rules 1 & 2 (cited as 'order 90 rule 1 & 2') and Order 51 rule 1 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, "Joseph Wanjala Lutta v Attorney General & 2 others [2018] KEELC 3064 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3064/eng@2018-05-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.