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ELCDismissedNotice of motion dated 21st November 2018 (ruling delivered 26th September 2019)· [2019] KEELC 1527 (KLR)

Joseph Njoroge Kang’arua v Harrison Wagacha Munyui;James Ndungu Ikere (Interested Party) [2019] KEELC 1527 (KLR)

Environment and Land Court
26 September 2019
LKL. KOMINGOI
514 words in judgment
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The bottom line

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A Kenyan land court dismissed a bid to nullify interim orders over alleged fraud, ruling fraud claims must wait for the full trial.

What this practically means

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Executive summary

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This ruling disposes of a notice of motion dated 21st November 2018 by the plaintiff, Joseph Njoroge Kang'arua, brought under Order 40 rules 1, 2 and 3 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act. The plaintiff sought to nullify and expunge the 1st interested party's application from the case on the basis of alleged fraudulent activities, and further sought an order that the Directorate of Criminal Investigations investigate the defendant and the 1st interested party. The application was opposed by replying affidavits sworn by the defendant, Harrison Wagacha Munyui, and the interested party, James Ndungu Ikere. Justice L. Komingoi reviewed the court record and noted that by a consent recorded pursuant to a notice of motion dated 26th November 2013, the interested party and the Land Registrar Kiambu had been properly enjoined, and a temporary injunction had been issued preserving the suit property. The court found that the orders issued on 20th November 2018 were granted after due consideration and were not procured by fraud, deceit, coercion or threat. The defendant confirmed errors in the acreage stated on the plaintiff's title deed, but the court held that the fraud allegations raised in the application should be determined at the main hearing where all parties would be heard on merit. Concluding that the application was intended to delay the case, the court dismissed it with costs to abide the outcome of the main suit.

Key legal issues

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01

Whether the application to nullify the 1st interested party's application and order criminal investigations was merited

Holding

The application lacked merit and was dismissed as an attempt to delay the suit

Reasoning

The court reviewed the record and found that a prior consent had properly enjoined the interested party and the Land Registrar, and that interim injunction orders issued on 20th November 2018 were granted after due consideration and not obtained through fraud or coercion. The defendant confirmed errors in the acreage on the plaintiff's title, but the court held that fraud allegations must be determined at the main hearing with all parties heard.

p. 2

Legal principles established

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  • Interim orders granted after due consideration of the facts cannot be nullified on allegations of fraud at the interlocutory stage; such allegations must await the main hearing

Court orders

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  1. 1.The notice of motion dated 21st November 2018 is dismissed
  2. 2.Costs to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules 2010Order 40 rules 1, 2 and 3; Section 63(e)
Jurisdiction invoked
Order 40 rules 1, 2 and 3 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act

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 Njoroge Kang’arua v Harrison Wagacha Munyui;James Ndungu Ikere (Interested Party) [2019] KEELC 1527 (KLR)", Case Analysis (2019). Notice of motion dated 21st November 2018 (ruling delivered 26th September 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1527/eng@2019-09-26

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