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ELCPartially AllowedNotice of Motion dated 14th November 2017 (suit over L.R No. 18615, I.R 666431/1)· [2019] KEELC 4893 (KLR)

Pentecostal Evangelistic Fellowship of Africa v John Muriri & 11 others [2019] KEELC 4893 (KLR)

Environment and Land Court
24 January 2019
1,873 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The court added two people to a church's land dispute and stopped them building further, but could not undo walls and trenches already built.

What this practically means

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Executive summary

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The plaintiff church, through its trustee Bishop Dr. Mophat Kilioba, moved the court by Notice of Motion dated 14th November 2017 seeking the joinder of Beatrice Wanjiru Muiruri and Carlos Kalola as defendants and a temporary injunction restraining them from excavating trenches, erecting walls or interfering with its quiet possession of or access to L.R No. 18615, I.R 666431/1. The plaintiff, the registered owner, alleged that after the court dismissed an earlier injunction application on 17th February 2017, the intended defendants hired thugs who dug trenches and erected a wall restricting access to its church building, and that an earlier injunction application had faltered because the intended defendants were not yet parties. The intended 11th defendant denied trespass, asserting the wall stood on her land and that the plaintiff had encroached on a road. Okong'o J framed two issues: joinder and the injunction. Applying the tests for necessary parties from Central Kenya Ltd, Deported Asians Property Custodian Board and Werrot & Co, the court found an issue to be tried and joined the intended defendants to avoid multiplicity of suits. On the Giella v Cassman Brown and Nguruman principles, the court found a prima facie case - the plaintiff held title while the intended defendants did not - and irreparable injury. However, since the trenches and walls already existed, the injunction was limited to restraining further digging, further construction and any interference with possession. The joinder was allowed, an injunction in those terms issued, the plaintiff was to amend the plaint within 14 days, and costs were made costs in the cause.

Key legal issues

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01

Joinder of intended defendants

Holding

Joinder granted because the plaintiff's claim of trespass against them mirrors its claim against existing defendants and their presence avoids multiplicity of suits

Reasoning

The court applied the tests for necessary parties: a right to relief against the party and the impossibility of an effective decree without them. The claim against Beatrice Wanjiru Muiruri and Carlos Kalola was the same trespass claim, she denied trespass and raised a counter-claim of encroachment, so there was an issue to be tried and joinder would allow all claims to be heard together.

p. 2
02

Prima facie case for injunction

Holding

Established: the plaintiff produced a title while the intended defendants did not, so the basis of their claims was unestablished

Reasoning

The court gauged only the strength of the plaintiff's case, not deciding the suit. Photographs showed access severely restricted by walls. The plaintiff held a title to the suit property; the intended 11th and 12th defendants produced no title establishing their claim to the land where they built, so a genuine and arguable case of trespass existed calling for rebuttal.

p. 3
03

Scope of the injunction

Holding

Injunction limited to future acts; no order for removal of existing trenches and walls

Reasoning

A prohibitory injunction protects against future interference. On the plaintiff's own admission the excavation was complete and permanent walls erected, so restraining those acts would be futile. The court instead restrained further digging, further wall construction and any interference with the plaintiff's quiet possession pending trial.

p. 3

Legal principles established

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  • Joinder should be freely allowed at any stage provided no uncompensatable prejudice or injustice results
  • A person is a necessary party where the orders sought would affect their interest or where an effective decree cannot be passed in their absence
  • Interlocutory injunctions require a prima facie case, irreparable injury, and balance of convenience
  • An injunction cannot restrain an act already completed

Court orders

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  1. 1.Beatrice Wanjiru Muiruri alias Beatrice Wanjiru Gitukui and Carlos Kalola are added to the suit as 11th and 12th defendants respectively
  2. 2.Temporary injunction restraining the added defendants from excavating further trenches, erecting further walls on L.R No. 18615, I.R 666431/1 or otherwise interfering with the plaintiff's quiet possession, use or access pending hearing and determination of the suit
  3. 3.Plaintiff to amend the plaint within 14 days to effect the joinder
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Act and rules on joinder of parties and amendmentsjoinder/amendment provisions (implied)

Cases cited (8)

  • Central Kenya Ltd v Trust Bank & 5 Others
    CA No. 222 of 1998
  • Deported Asians Property Custodian Board v Jaffer Brothers Limited
    (1999) 1 E.A 55 (SCU)
  • Pravin Bowry v John Ward and another
    (2015) eKLR
  • Werrot and Company Ltd. and others v Andrew Doughlas Gregory and others
    Nairobi (Milimani) HCCC No. 2363 of 1998 (1998) LLR 2848 (CCK)
  • Giella v Cassman Brown & Co. Ltd.
    (1973) E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    (2014) eKLR
  • Habib Bank Ag Zurich v Eugene Marion Yakub
    CA No. 43 of 1982
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    (2003) eKLR
Jurisdiction invoked
Inherent civil procedure powers governing joinder of parties and interlocutory injunctions (Order on joinder of parties; 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, "Pentecostal Evangelistic Fellowship of Africa v John Muriri & 11 others [2019] KEELC 4893 (KLR)", Case Analysis (2019). Notice of Motion dated 14th November 2017 (suit over L.R No. 18615, I.R 666431/1). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4893/eng@2019-01-24

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