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ELCPartially AllowedNakuru ELC Case (suit over Nakuru Municipality Block 5/149) - Notice of Motion dated 23rd July 2018· [2019] KEELC 1626 (KLR)

Ethics and Anti-Corruption Commission v William Kimaru & 2 others [2019] KEELC 1626 (KLR)

Environment and Land Court
30 September 2019
DOD. O. Ohungo
1,239 words in judgment
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The bottom line

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A Kenyan court froze the sale and development of disputed public land in Nakuru, ruling it likely government property while allowing the owner to stay put until trial.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (D. O. Ohungo, J) determined a Notice of Motion dated 23rd July 2018 in which the plaintiff, through a forensic investigator, sought an interlocutory injunction restraining the 2nd defendant from dealing with Nakuru Municipality Block 5/149 pending the hearing and determination of the suit. The plaintiff's case was that the property was unalienated government land on which stood a government house (NKU/HOU/MG/27), that a land officer purportedly offered it to the 1st defendant in 1994, and that the subsequent lease and certificate of lease issued to Jim Kiptum Choge (deceased), represented by the 2nd defendant, were fraudulent, illegal, null and void. The 2nd defendant did not deny the property was government land with a house on it but maintained the allocation was lawful, and further argued the suit was res judicata and an abuse of process by reference to Nairobi Judicial Review Application No. 570 of 2017 and High Court Succession Cause No. 934 of 2008 (Nairobi). Applying the Giella test as sequenced in Nguruman, the court held a prima facie case had been established, that damages would not be an adequate remedy, and that res judicata did not apply since the validity of the allotment and titles was never determined in the former proceedings. The court granted a preservation-only injunction (expressly not an eviction), extended the life of the inhibition ordered on 24th July 2018, and awarded costs of the application to the plaintiff. The substantive validity of the allocation remains for trial.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

A prima facie case was established warranting preservation of the suit property pending trial

Reasoning

It was common ground that the suit property was government land with a government house on it before allocation. If the applicant succeeds at trial, the property would likely revert to the government. The litigation being in the public interest, the court had a duty to preserve the property so the suit was not rendered academic. Damages could not adequately compensate.

p. 2
02

Res judicata

Holding

Res judicata inapplicable because the former succession and judicial review proceedings did not determine the validity of the allotment

Reasoning

The Succession Cause proceedings were under the Law of Succession Act, and the judicial review application sought mandamus to enforce an order from that cause. Neither determined the validity of the allotment of the suit property or the ensuing titles, so the ingredients of res judicata under Section 7 of the Civil Procedure Act were not met.

p. 2
03

Adequacy of damages

Holding

Damages were not an adequate remedy, justifying an injunctive preservation order

Reasoning

Given that the suit property was government land with a government house and the litigation is in the public interest, monetary compensation would not suffice. The court therefore granted a preservation-only injunction and extended the life of the existing inhibition.

p. 2

Legal principles established

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  • The three Giella conditions are separate sequential hurdles; failure to establish a prima facie case renders the remaining limbs unnecessary
  • Res judicata does not apply where the validity of the allotment and titles was never determined in the former suits

Court orders

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  1. 1.Injunction restraining the 2nd defendant from alienating, selling, transferring, charging, developing, leasing, sub-dividing, wasting or otherwise dealing with Nakuru Municipality Block 5/149 pending hearing and final determination of the suit
  2. 2.The inhibition ordered at the ex parte stage on 24th July 2018 to remain in force pending hearing and determination of the suit
  3. 3.Costs of the application to the plaintiff

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Law of Succession ActNot specified

Cases cited (3)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land (interlocutory application in pending suit)

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, "Ethics and Anti-Corruption Commission v William Kimaru & 2 others [2019] KEELC 1626 (KLR)", Case Analysis (2019). Nakuru ELC Case (suit over Nakuru Municipality Block 5/149) - Notice of Motion dated 23rd July 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1626/eng@2019-09-30

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