Njiru Mwondu v Naomi Wambeti John & another [2020] KEELC 2030 (KLR)
The bottom line
#The Environment and Land Court stopped an eviction and froze land dealings, ruling that factual claims cannot be sneaked in through preliminary objections instead of a replying affidavit.
What this practically means
#Executive summary
#Key legal issues
#Validity of the Respondents' preliminary objection
The response raised factual matters that should have been adduced through a replying affidavit and did not constitute pure points of law.
The Respondents did not file a replying affidavit but instead filed a document styled as a notice of preliminary objection and grounds of objection. The court, applying the Mukisa Biscuits test, found the grounds were factual matters concerning registration dates and possession, which cannot be canvassed as preliminary objections or grounds of opposition. It characterized the device as an attempt to introduce evidence through a short cut.
Temporary injunction - prima facie case, irreparable harm, balance of convenience
All three Giella v Cassman Brown conditions were satisfied; the temporary injunction was granted.
With the Respondents' averments unchallenged, the court accepted the Applicant's long possession and developments on the suit property, finding a prima facie case with a probability of success. The disruption, anxiety and hardship of a premature eviction were held not quantifiable in monetary terms. The balance of convenience favoured the Applicant, who had been in possession for a long period and would suffer greater hardship.
Order of inhibition under Section 68(1) of the Land Registration Act
The inhibition order was granted to preserve the suit property pending trial.
The court held that it has a duty to preserve property that is the subject of a dispute pending resolution of that dispute and to prevent the outcome of a suit from being rendered nugatory, relying on Patel v Patel. It was therefore inclined to grant the inhibition sought under Section 68(1) of the Land Registration Act, 2012.
Legal principles established
#- Matters raised in a response that are factual rather than points of law cannot be canvassed as a preliminary objection or grounds of opposition; evidence cannot be introduced through that short cut.
- Uncontroverted affidavit evidence is accepted as true.
- The court has a duty to preserve property which is the subject of a dispute pending resolution of the dispute and to prevent the outcome of a suit being rendered nugatory.
Court orders
#- 1.Temporary injunction restraining the Defendants, their agents or servants from forcibly evicting the Applicant and his family members from Title No. Kagaari/Kanja/3867 pending the hearing and determination of the suit (Order No. 4 of the notice of motion)
- 2.Order of inhibition preventing any dealings with the suit property pending the hearing and determination of the suit (Order No. 5 of the notice of motion)
- 3.Costs of the application to be in the cause
- Jurisdiction invoked
- Section 68(1) of the Land Registration Act, 2012; Order 40 Rule 1(a) and Order 51 of the Civil Procedure Rules; Section 3A of the Civil Procedure Act, Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njiru Mwondu v Naomi Wambeti John & another [2020] KEELC 2030 (KLR)", Case Analysis (2020). Notice of motion dated 13th January 2020 (suit pending hearing and determination). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2030/eng@2020-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.