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ELCPartially Allowed· [2019] KEELC 2058 (KLR)

Wilfred G Gisebe v Chepkwony Chumo & 2 others; Cheruiyot Henry Kiptanui (Interested Party) [2019] KEELC 2058 (KLR)

Environment and Land Court
9 July 2019
MSMunyao Sila
906 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 plaintiff, who claimed he was allocated Plot No. 1681 in Barut Farm by Kalenjin Enterprises in 1990 and took possession, but left in 1992 owing to tribal clashes, sued Chepkwony Chumo and Kalenjin Enterprises in a plaint filed on 21 March 2012, alleging that the 1st defendant processed an allotment letter and title deed during his absence. He sought orders restraining the defendants from dealing with the land and an order that he be registered as proprietor. Neither defendant entered appearance. By an application dated 16 October 2018, the plaintiff sought leave to amend the plaint, extension of summons against the 3rd defendant, Gideon Kipyegon Rop, and an injunction restraining the defendants and the interested party, Cheruiyot Henry Kiptanui, from dealing with Miti Mingi/Mbaruk Block 3/1681. Cheruiyot, who claimed to be the registered title holder, had been enjoined as interested party on 10 April 2018 and opposed the application, contending he was the rightful owner and that the plaintiff referred to a different parcel. The court granted leave to amend within 14 days and extended the validity of summons by six months only, warning the suit against the 3rd defendant would abate if service was not effected. On the injunction, the court held no prima facie case was established because the plaintiff declined to make the interested party, the title holder, a substantive defendant. The injunction was dismissed and the interested party awarded costs of the application.

Key legal issues

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01

Amendment of plaint

Holding

Leave to amend granted where the draft amended plaint merely adds pleadings on fraud and a declaration of ownership

Reasoning

The court reviewed the draft amended plaint and found it sought to add pleadings on fraud against the defendants and interested party and a declaration of rightful ownership. It saw no issue with the amendment and granted leave, requiring the amendment within 14 days, since no prejudice was indicated.

p. 1
02

Extension of validity of summons

Holding

Summons against the 3rd defendant extended by 6 months only, given the age of the case

Reasoning

Although the court saw no prejudice in extending summons, it noted the suit was old and limited the extension to six months. If service is not effected within that period, the suit against the 3rd defendant will abate.

p. 1
03

Entitlement to injunction where title holder is not a substantive party

Holding

Injunction denied; no prima facie case where the plaintiff refuses to make the registered owner a substantive defendant

Reasoning

The suit land was registered in the name of the interested party, who joined the suit after noting the plaintiff was litigating over his land. The court reasoned that a plaintiff seeking a title must make the title holder a substantive defendant to seek orders against him; absent that, the plaintiff cannot succeed and no prima facie case with a probability of success exists.

p. 2

Legal principles established

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  • To obtain an injunction, a plaintiff must demonstrate a prima facie case with a probability of success against the defendant
  • A plaintiff seeking title held by a third party must make that title holder a substantive defendant to obtain orders against him

Court orders

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  1. 1.Leave granted to amend the plaint, the plaint to be amended within 14 days
  2. 2.Validity of summons against the 3rd defendant extended by a further 6 months, failing which the suit against the 3rd defendant will abate
  3. 3.Prayer for injunction dismissed
  4. 4.Interested party awarded the costs of the application

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wilfred G Gisebe v Chepkwony Chumo & 2 others; Cheruiyot Henry Kiptanui (Interested Party) [2019] KEELC 2058 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2058/eng@2019-07-09

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