Ethics and Anti-Corruption Commission v Haroun Ngeny Kipkemboi Arap Mengech & 4 others [2019] KEELC 595 (KLR)
The bottom line
#Kenya's land court blocked all dealings with disputed Nakuru public land, ruling prior succession cases don't shield questionable titles from fresh scrutiny.
What this practically means
#Executive summary
#Key legal issues
#Compliance with Order 4 Rule 1(f) and 1(2) Civil Procedure Rules
The preliminary objection fails; the plaint contained the required averment and a verifying affidavit.
Paragraph 34 of the plaint avers there is no other suit pending and no previous proceedings between the parties over the same subject matter, and the plaint was accompanied by a verifying affidavit sworn by Jecinta Bungei. The objection, unsupported by submissions, was manifestly without merit and was dismissed with costs.
Res judicata and jurisdiction relative to prior High Court decisions
The suit is not res judicata; the validity of the allotment and titles was never before the High Court, and this court will exercise no supervisory role over it.
The succession cause proceeded under the Law of Succession Act and the judicial review application merely enforced the order issued in it by mandamus. The validity of the allotment and ensuing titles was never determined. That question falls squarely within this court's jurisdiction and it is in the interest of the parties and future transactors to have it determined.
Interlocutory injunction
A prima facie case established; damages inadequate; injunctions granted against all defendants over the suit property.
The undisputed public history shows a government house built in the 1960s standing on land reserved for government housing, raising a valid issue whether the allocation, titles and charge were valid. Preservation is necessary pending trial and damages would not be an adequate remedy.
Legal principles established
#- Res judicata does not apply where the validity of allotment of land and ensuing titles was never determined in the former suits
- The Giella conditions are applied sequentially; failure at the first stage ends the inquiry
Court orders
#- 1.Notice of Preliminary Objection dated 18th October 2018 dismissed with costs to the plaintiff
- 2.Notice of Motion dated 5th March 2019 dismissed with costs to the plaintiff
- 3.Injunction restraining the 1st, 2nd and 3rd defendants from selling, advertising for sale, auctioning, transferring, further charging or dealing with Nakuru Municipality Block 5/144 pending hearing and final determination of the suit
- 4.Injunction restraining the 4th defendant from alienating, selling, transferring, charging, developing, leasing, sub-dividing, wasting, entering upon or dealing with Nakuru Municipality Block 5/144 pending hearing and final determination of the suit
- 5.The inhibition ordered at the ex parte stage to remain in force pending hearing and determination of the suit
- 6.Costs of Notice of Motion dated 23rd July 2018 awarded to the plaintiff
- Jurisdiction invoked
- Jurisdiction of the Environment and Land Court over title to land (suit property Nakuru Municipality Block 5/144); no specific constitutional provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti-Corruption Commission v Haroun Ngeny Kipkemboi Arap Mengech & 4 others [2019] KEELC 595 (KLR)", Case Analysis (2019). ELC Case (Nakuru) – Notice of Motion dated 23rd July 2018; Notice of Preliminary Objection dated 18th October 2018; Notice of Motion dated 5th March 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/595/eng@2019-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.