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ELCPartially Allowed· [2019] KEELC 3044 (KLR)

Lydia Achieng Abura v Usonik Farm Purchase Cooperative Society Limited [2019] KEELC 3044 (KLR)

Environment and Land Court
12 June 2019
3,158 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court ordered a cooperative society to vacate inherited land within 90 days because it built without the family's consent, even while allowing its late defence.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (S.M. Kibunja, E&L Judge, delivered 12th June 2019) determined three interlocutory motions in a land dispute over L.R. No. 6015/3 Nandi District. The Plaintiff, administratrix of the estate of Isabella Akumu Abura (deceased), sought an injunction, eviction and demolition orders against the Defendant cooperative society, which claimed it had been incorporated by members of Kichabe Farmers Cooperative Society in 2007 to purchase 500 acres of the estate to settle a debt owed to the Agricultural Finance Corporation, and that its members had lawfully occupied and farmed the land. The Plaintiff also sought judgment for failure to file a defence, while the Defendant sought enlargement of time to file its defence out of time. The court granted the injunction restraining the Defendant from interfering with the suit land and ordered the Defendant to vacate and remove its structures within 90 days, failing which eviction and demolition would follow under police supervision. The summary judgment application was dismissed because the claim for general damages required oral hearing and the overriding objective favoured determination on merit. The Defendant's application for enlargement of time was granted conditionally upon payment of Kshs. 20,000/= thrown away costs within 14 days, failing which interlocutory judgment would be entered. The court further directed the substituted Plaintiffs to file an amended plaint, the Defendant an amended defence, and set the matter down for Order 11 compliance and trial conference. Costs were largely left in the cause. An earlier preliminary objection on jurisdiction had been rejected on 8th May 2014.

Key legal issues

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01

Whether interlocutory injunction and eviction orders should issue against the Defendant

Holding

A prima facie case was established; the Defendant entered and built without the Plaintiff's consent, so it was restrained and ordered to vacate within 90 days

Reasoning

The court held that the Plaintiff, as administratrix of the estate of the registered proprietor, holds the legal and beneficial right to determine who occupies the land. Without making a final finding on the Defendant's asserted contractual rights, it was obvious the Defendant had not obtained the Plaintiff's consent before erecting structures. Fairness therefore required restraint of the Defendant's use of the land pending trial, with demolition in default of vacation within ninety days, supervised by the OCS Nandi.

p. 4
02

Whether summary judgment could be entered where no defence was on file when the application was made

Holding

Refused; the prayer for general damages requires oral hearing and the court elected to allow the defence out of time

Reasoning

Although all prayers except general damages were amenable to the summary procedure under Order 36 Rule 1(1)(b), summary judgment is reserved for the clearest of cases. The court considered the defence filed about four months out of time without leave and the Defendant's motion for enlargement of time. Guided by the overriding objective in Sections 1A and 1B of the Civil Procedure Act, allowing the defence out of time would better facilitate expeditious determination on merit.

p. 4
03

Whether mis-citation of Order 36 Rule 1(b) instead of Rule 1(1)(b) vitiated the summary judgment application

Holding

No; procedural deficiencies are curable under Article 159(2)(d) and Order 50 Rule 10

Reasoning

The application cited Order 36 Rule 1(b), whereas the correct provision for suits for recovery of land is Rule 1(1)(b). The court found that under Order 50 Rule 10 of the Civil Procedure Rules and Article 159(2)(d) of the Constitution, which favour substantive justice over procedural technicality, the failure to cite the correct rule was not fatal because the body of the motion and the supporting affidavit left no doubt about the prayers sought.

p. 4
04

Whether the Defendant's late defence should be deemed filed and time enlarged

Holding

Granted, conditional on payment of thrown away costs of Kshs. 20,000/= within 14 days

Reasoning

The Defendant's motion dated 5th November 2018 was considered together with the other two applications. The court found the Defendant had presented reasonable grounds for enlargement of time to file defence out of time. To fast-track the suit on merit, time was enlarged, but the indulgence was made conditional: default in paying thrown away costs of Kshs. 20,000/= within 14 days would vacate the orders, result in interlocutory judgment and leave to set the suit down for formal proof.

p. 4

Legal principles established

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  • Mis-citation of the provisions under which an application is brought is not fatal where the body of the application and affidavit leave no doubt as to the prayers sought
  • Summary judgment should be entered only in the clearest of cases
  • An administrator of a deceased registered proprietor holds the legal and beneficial right to determine who occupies the land

Court orders

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  1. 1.Restraining order in terms of prayer 3 of the motion dated 13th February 2014 pending the hearing and determination of the suit
  2. 2.The Defendant to vacate the suit land and remove all structures erected thereon within ninety (90) days and in default be evicted and the structures demolished as prayed in prayers 4 and 5
  3. 3.The Officer Commanding Nandi Police Station to provide security during execution of the default orders
  4. 4.Costs of the motion dated 13th February 2014 to be in the cause
  5. 5.The motion dated 4th July 2014 for summary judgment dismissed with costs in the cause
  6. 6.Prayer 2 of the Defendant's motion dated 5th November 2018 for enlargement of time granted; Defendant to serve the statement of defence in 14 days
  7. 7.Defendant to pay Plaintiff's thrown away costs of Kshs. 20,000/= in 14 days, in default the time-enlargement orders stand vacated, interlocutory judgment entered and Plaintiff at liberty to set the suit down for formal proof
  8. 8.Plaintiffs directed to file and serve an amended plaint incorporating the substituted plaintiffs; Defendant to file an amended defence within 14 days of service
  9. 9.Both parties granted 30 days to file and serve statements and lists of documents
  10. 10.Matter to be mentioned before the Deputy Registrar for Order 11 compliance confirmation and trial conference

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure RulesOrder 36 Rules 1(1)(b), 2 and 3
  • Civil Procedure RulesOrder 7 Rule 1
  • Civil Procedure RulesOrder 50 Rule 10
  • Civil Procedure RulesOrder 11
  • Constitution of Kenya 2010Article 159(2)(d)
  • Law of Contract ActSection 3
  • Succession ActSection 45

Cases cited (8)

  • Pauline Arepel Cheptalam vs Zipporah Chepochepaw Kanyongo & Another
    [2017] eKLR
  • Lomolo (1962) Limited vs Shadrack K. Kimose & 147 Others
    [2016] eKLR
  • Kangaita Tea Factory Company Ltd vs Muhammed Njiru Njagi & 7 Others
    [2014] eKLR
  • Jayesh Hasmukh Shah vs Navin Haria & Another
    [2016] eKLR
  • William Ntomanta Mlethanga sued as M'Manta Nkari vs Baikiamba Kirimania
    [2017] eKLR
  • Mixko Blacterman, Suing through his Power of Attorney, Shabir Halim Ali, & Another vs David Mwangi & 2 Others
    [2015] eKLR
  • Daniel Lago Okomo vs Safari Park Hotel Ltd & Another
    [2017] eKLR
  • Beatrice Wanjiru Kamuri vs John Kiriba Muiruri
    [2016] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over L.R. No. 6015/3 Nandi District (jurisdiction objection over relocation to Eldoret ELC rejected on 8th May 2014)

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, "Lydia Achieng Abura v Usonik Farm Purchase Cooperative Society Limited [2019] KEELC 3044 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3044/eng@2019-06-12

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