Enaso Ene Parisue & 2 others v Joseph Bradley Waweru Gitari & 8 others [2020] KEELC 1061 (KLR)
The bottom line
#The Kajiado Environment and Land Court protected registered landowners with an injunction, refusing to validate the occupation of land taken without a court order.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to amend the Plaint should issue
Leave granted; pleadings not yet closed under Order 8 rule 1, and substituted service through the Daily Nation allowed given the large number of buyers.
The court applied Order 8 rule 1 of the Civil Procedure Rules, noting pleadings had not closed. The list of buyers annexed to the supporting affidavit showed many third parties, making personal service problematic and time-consuming; in the interest of justice, substituted service by newspaper advertisement within 30 days was permitted, with liberty to the Defendants to amend their Defences.
Whether injunctions should issue against the Plaintiffs pending suit
Yes; the 1st and 2nd Defendants established a prima facie case, irreparable harm and balance of convenience.
The registered proprietors retained title (not yet revoked) despite the revocation of the Certificate of Confirmation of Grant. The Plaintiffs' self-help occupation after April 2020, cutting trees and erecting structures, infringed the proprietors' rights. Injuries were actual and demonstrable, and the balance of convenience tilted toward the Defendants.
Whether the 23rd June 2020 orders should be varied to status quo
Refused; status quo would validate unlawful entry.
The Plaintiffs had not been on the suit land from 2006 to April 2020 and the High Court Ruling revoking the Grant did not cancel titles or direct them to occupy. Granting status quo would legitimize their self-help occupation before determination of the title dispute.
Whether to restrain further cautions/restrictions
Refused; existing restriction ordered by the High Court preserves the substratum of the suit.
Section 71 and 76 of the Land Registration Act govern cautions and restrictions. Judge Chacha Mwita had already directed registration of a restriction in Misc. Appl. No. 18 of 2019, and the court declined to interfere with a competent court's order since the dispute concerns ownership.
Whether the 5th Defendant in the Counterclaim (an advocate) should be struck out
Struck out; no decipherable role and an advocate merely acts on instructions, though costs were not imposed personally on opposing counsel.
Applying Order 2 rule 15 and the Ramji Megji Gudka/DT Dobie caution on striking out, the court found the role of the 5th Defendant in the dispute undecipherable from the pleadings, and as an advocate he simply acted on instructions. Costs were however borne by the Plaintiff in the Counterclaim, not the advocate personally.
Legal principles established
#- A prima facie case is as defined in Mrao Ltd v First American Bank, and injunctions are granted per Giella v Cassman Brown principles.
- Equity follows the law: registered proprietors whose titles are unrevoked retain proprietary rights protected by law notwithstanding a challenge.
- The power to strike out pleadings must be sparingly exercised and only in the clearest of cases.
- An advocate merely acts on instructions of a client and cannot be condemned in costs for representing or advising clients.
Court orders
#- 1.The Plaintiffs are granted leave to amend their Plaint and serve the new Defendants within 30 days via the Daily Nation Newspaper.
- 2.An order of injunction issued restraining the Plaintiffs and the 1st, 2nd, 3rd and 4th Defendants to the counterclaim, their agents, servants, employees and invitees from entering upon, trespassing, constructing structures, occupying, cutting down trees, disposing, charging, sub-dividing, dealing, alienating or otherwise interfering with the 1st and 2nd Defendants' proprietary rights over LR Kajiado/Kaputiei-North/43967 and Kajiado/Kaputiei North/64760-65103 pending hearing and determination of the suit and counterclaim.
- 3.The 5th Defendant in the Counterclaim is struck off the suit with his costs to be borne by the Plaintiff in the Counterclaim.
- 4.Costs of the applications to be in the cause.
- Jurisdiction invoked
- Articles 22 and 23(3)(b) & (c) of the Constitution; Section 13(7)(a) & (b) of the Environment and Land Court Act; Civil Procedure Act and Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Annah Agnes Nduta v Jeniffer Ogambla [2021] KEELC 1617 (KLR)[2021] KEELC 1617 (KLR)5 Oct 2021
Cite this brief
#Cite this brief
Caselaw, "Enaso Ene Parisue & 2 others v Joseph Bradley Waweru Gitari & 8 others [2020] KEELC 1061 (KLR)", Case Analysis (2020). ELC Case at Kajiado (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1061/eng@2020-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.