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ELCPartially AllowedNot stated in the ruling· [2018] KEELC 3598 (KLR)

R.J.F. Kenya Limited v Peter Njuguna Ngugi & 2 others [2018] KEELC 3598 (KLR)

Environment and Land Court
5 April 2018
SOS. Okong'o
3,810 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Nairobi land dispute shows courts join the real adversary as a defendant, deny injunctions without proper pleadings, and preserve all disputed property until trial.

What this practically means

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Executive summary

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The plaintiff, registered owner of L.R No. 209/14758 (IR 175501) in Nairobi, sued the defendants claiming they invaded the suit property on 8th August, 2016 and sought a permanent injunction, a declaration of ownership, cancellation of the defendants' titles and general damages. Together with the plaint it sought a temporary injunction under a Notice of Motion dated 10th August, 2016, which was granted on an interim basis. Gulf Energy Limited, owner of L.R No. 9306 and L.R No. 9804, later applied to be joined, for a surveyor to fix the boundaries, and for the plaintiff to remove a fence it had erected around Gulf Energy's properties, alleging the plaintiff had wrongly applied the interim orders to them. The court directed the Director of Surveys to appoint a surveyor, Pricilla N. Wango, whose report of March, 2017 placed the properties far apart. Deciding the plaintiff's and interested party's applications together, the court found the dispute was between the plaintiff and Gulf Energy, not the defendants, who had ceased owning L.R No. 9306 in 2006 and never owned L.R No. 9804; the plaintiff's application was dismissed. Gulf Energy was joined as 3rd Defendant with the plaint to be amended within 21 days, the site-visit limb was overtaken by events, and its injunction application failed for lack of a supporting pleading. Both parties were denied injunctions but preservation orders were issued over all three parcels and the survey beacons pending trial; costs were left in the cause.

Key legal issues

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01

Whether the plaintiff established a prima facie case against the defendants for a temporary injunction

Holding

The plaintiff failed; the defendants had no interest in the suit property or the interested party's properties, having disposed of L.R No. 9306 ten years earlier, and never having owned L.R No. 9804.

Reasoning

The documents of title showed the defendants alienated L.R No. 9306 to others in 2006 and never owned L.R No. 9804. The dispute is between the plaintiff and Gulf Energy over the location and boundaries of their parcels, not over the defendants. The court held the suit should have been brought against the interested party, and that in any event the plaintiff's title, issued on 12th May 2016, was later in time than the defendants' grants.

p. 3
02

Whether Gulf Energy Limited should be joined as an interested party

Holding

Gulf Energy should be joined, but as a substantive party, i.e. a defendant, since it has a claim against the plaintiff for encroachment.

Reasoning

The real dispute is between the plaintiff and Gulf Energy over the location of their respective parcels. Gulf Energy was a necessary party whose presence is required for effectual determination of all controversies and should have been joined when the suit was filed. The court directed joinder as 3rd Defendant and amendment of the plaint.

p. 4
03

Whether the interested party could obtain an injunction before joinder

Holding

No; the injunction sought was not based on any pleading and the court could not assess whether the interested party had a prima facie case.

Reasoning

The interested party had not yet been joined so as to raise its claim against the plaintiff. The survey report supporting its contention that the properties are far apart is only evidence, which cannot per se form the basis of an injunction. Both parties were denied injunctions, but preservation orders were made in the interest of justice given the volatile situation on the ground.

p. 4

Legal principles established

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  • The standard of proof of a prima facie case for a temporary injunction is on a balance of probabilities
  • Where the location of parcels of land overlaps, the title first in time prevails
  • A surveyor's report is evidence only and cannot of itself be a basis for an injunction

Court orders

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  1. 1.Gulf Energy Limited is joined in this suit as the 3rd Defendant
  2. 2.The plaintiff shall amend the plaint within twenty one (21) days to effect the joinder
  3. 3.Gulf Energy Limited shall file its response to the amended plaint together with its bundle of documents and witness statements within twenty one (21) days from the date of service of the amended plaint
  4. 4.Pending the hearing and determination of this suit or further orders, neither the plaintiff nor Gulf Energy Limited shall sell, lease, charge, mortgage, fence, develop or put up structures of any nature on L.R No. 209/14758 (IR175501), L.R No. 9306, Nairobi and L.R No. 9804, Nairobi
  5. 5.Pending the hearing and determination of this suit or further orders, neither the plaintiff nor Gulf Energy Limited shall interfere with or tamper with the survey beacons marking the boundaries of L.R No. 9306 and L.R No. 9804 re-established and replaced by Pricilla N. Wango
  6. 6.The plaintiff's Notice of Motion dated 10th August, 2016 is dismissed
  7. 7.The interested party's application dated 18th October, 2016 is allowed to the extent of orders 1, 2 and 3
  8. 8.The costs of the two applications shall be in the cause
Jurisdiction invoked
Inherent jurisdiction and powers for expeditious disposal of cases to order site visit; injunction applications under Civil Procedure rules (not expressly cited)

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, "R.J.F. Kenya Limited v Peter Njuguna Ngugi & 2 others [2018] KEELC 3598 (KLR)", Case Analysis (2018). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3598/eng@2018-04-05

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