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ELCDismissedNotice of motion dated 31st July 2018 (in Embu ELC originating summons proceedings)· [2019] KEELC 4201 (KLR)

Zakayo Njeru Ngari v Daudi Ngari Njiru & another;Michael Kinyua Namu & 51 others (Interested Party) [2019] KEELC 4201 (KLR)

Environment and Land Court
7 March 2019
YAY.M. Angima
1,734 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Embu Land Court dismissed a bid to block sub-divisions of clan land because the main defendant had died and no personal representative was joined.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Embu (Y.M. Angima, J) on a notice of motion dated 31st July 2018 brought under section 68(1) of the Land Registration Act 2012, Order 51 Rule 10 of the Civil Procedure Rules and section 3A of the Civil Procedure Act. The Applicant sought an inhibition order and a temporary injunction against some 53 parcels sub-divided from the original Title No. Mbeere/Kirima/2976, alleging that the Respondents had unlawfully sub-divided and alienated the property, constructed access roads and closed water points. The 15th, 16th, 17th, 18th and 30th interested parties filed replying affidavits contending that the 1st Respondent and some interested parties were deceased, that they had acquired the parcels lawfully following a Mbeere Land Disputes Tribunal decision, and that the Applicant's interest was unclear. The Tribunal's award had in fact been quashed by consent in High Court Miscellaneous Application No. 34 of 2010 by a certiorari order and decree dated 26th October 2011, yet the sub-division proceeded. The court framed two issues: entitlement to inhibition and to temporary injunction. It held that the 1st Respondent, the main actor, died on 12th August 2017 before the suit and his personal representative was not joined, that no prima facie case could exist against him under Giella v Cassman Brown, that deceased interested parties could not be proceeded against unheard, and that no evidence showed danger to the suit properties. The motion was dismissed with costs to the participating interested parties.

Key legal issues

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01

Whether the Applicant established a prima facie case for temporary injunction or inhibition

Holding

The Applicant failed to establish a prima facie case with a probability of success or demonstrate a real danger justifying inhibition; the application was dismissed.

Reasoning

The 1st Respondent, the main actor in the complained-of sub-division, died before the suit was filed and his personal representative was not joined, so no prima facie case could lie against him. Some interested parties were also alleged deceased and uncontroverted. The Applicant's interest in the suit properties was unclear; both he and the 1st Respondent had held the original parcel on behalf of Ikandi clan, not individually. No evidence showed the properties were in danger of falling into wrong hands.

p. 2

Legal principles established

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  • A court ought not to proceed or make orders against persons (including deceased persons) without according them an opportunity of being heard.

Court orders

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  1. 1.The notice of motion dated 31st July 2018 is dismissed with costs to the 15th, 16th, 17th, 18th and 30th interested parties who participated in the application by filing replying affidavits

Authorities

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Legislation

  • Land Registration Actsection 68(1)
  • Civil Procedure RulesOrder 51 Rule 10
  • Civil Procedure Act (Cap 21)section 3A

Cases cited (1)

  • Giella Vs Cassman Brown & Co Ltd
    [1973] EA 358
Jurisdiction invoked
Section 68(1) of the Land Registration Act 2012, Order 51 Rule 10 of the Civil Procedure Rules and section 3A of the Civil Procedure Act (Cap 21)

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, "Zakayo Njeru Ngari v Daudi Ngari Njiru & another;Michael Kinyua Namu & 51 others (Interested Party) [2019] KEELC 4201 (KLR)", Case Analysis (2019). Notice of motion dated 31st July 2018 (in Embu ELC originating summons proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4201/eng@2019-03-07

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