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ELCAllowedNot stated in the judgment· [2020] KEELC 2278 (KLR)

Estate of Jim Kiptum Choge (Suing through the administrators), Eva Chepkurui Cherogony & 3 others v Philip Kipkemboi Rono & 6 others; Antique Auctioneers (Proposed Interested Parties) [2020] KEELC 2278 (KLR)

Environment and Land Court of Kenya
26 May 2020
5,582 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court blocked the sale of disputed Eldoret land and added a government ministry and auctioneers to the case.

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 Eldoret (M. A. Odeny, J.) on a notice of motion dated 10th December 2019 by the 5th and 6th defendants. They sought (i) the enjoinment of Antique Auctioneers as an interested party and of the Principal Secretary, State Department of Housing and Urban Development as 7th defendant; (ii) an interim and a longer-term injunction restraining the 4th defendant from selling or offering for sale by public auction, alienating or otherwise interfering with Eldoret Municipality Block 7/277, property over which ownership is disputed in the main suit; and (iii) costs. The applicants argued that the land is public land carrying a government house occupied by civil servants since 1958, that the 4th defendant's proposed sale violated the doctrine of lis pendens, and that the Giella v Cassman Brown threshold for injunction was met. The 4th defendant opposed, contending that the Attorney General was already on record for the Government, that the proposed 7th defendant was unnecessary, and that no irreparable harm or balance of convenience favoured the applicants. The court applied Order 1 Rules 8, 9 and 10 of the Civil Procedure Rules, the Muruatetu joinder principles, and Order 40(1) of the Civil Procedure Rules. It held that the proposed parties had an identifiable legal interest and stake, that joinder was necessary to avoid a miscarriage of justice or duplicative litigation, and that the Attorney General's presence did not cure the absence of the specific government institution. It further found the Giella threshold satisfied on all three limbs and observed that the 4th defendant's replying affidavit and submissions by Gumbo & Associates Advocates were not properly on record, there being no appearance or notice of appointment for the 4th defendant. The application was allowed as prayed, with the interested party and 7th defendant given 14 days to file any response to the claim.

Key legal issues

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01

Whether the proposed 7th defendant and interested party should be joined to the suit

Holding

Joinder allowed. The Principal Secretary demonstrated through documentation that the land was reserved for government housing in 1958 and houses are occupied by civil servants - an interest that is identifiable, proximate and not remote. The auctioneers' presence is necessary to explain the instructions given to them.

Reasoning

Applying Order 1 Rules 8, 9 and 10 of the Civil Procedure Rules, the Muruatetu elements for interested-party joinder, and the principle that a party directly affected by orders and necessary for effective adjudication must be joined, the court found a legal interest and identifiable stake. Excluding them risked miscarriage of justice or a duplicative suit. The argument that the Attorney General's presence sufficed was rejected because government institutions must be identified and give instructions to the AG.

p. 6
02

Whether the 4th defendant's proposed sale of the suit property violates the doctrine of lis pendens

Holding

The court accepted that the suit property is subject of pending proceedings and that selling it without leave of court would prejudice the parties and interfere with the substratum of the case, supporting preservation of the status quo.

Reasoning

Counsel for the applicants relied on Bellamy v Sabine and section 52 of the (repealed) Indian Transfer of Property Act as saved by section 107 of the Land Registration Act, submitting that disposal of property whose ownership is sub judice, without leave, is in bad faith. The court found that sale of the land before determination of ownership would interfere with the substratum of the case and warranted preservation of the status quo.

p. 7
03

Whether the applicants met the Giella threshold for a temporary injunction

Holding

Threshold met on all three limbs: prima facie case shown from the affidavits and documents; irreparable harm likely if the injunction is refused; and the balance of convenience favours maintaining the status quo.

Reasoning

The court applied Giella v Cassman Brown and Order 40(1)(a) and (b) of the Civil Procedure Rules. Ownership of the suit land is disputed by three sets of parties, so a prima facie case exists; sale before determination would destroy the substratum of the suit and cause irreparable harm; and the balance of convenience lies in preserving the status quo pending determination of ownership.

p. 7
04

Legal status of the 4th defendant's replying affidavit and submissions filed by Gumbo & Associates Advocates

Holding

The replying affidavit and submissions are not properly on record as the firm never filed a memorandum of appearance, notice of appointment or defence for the 4th defendant.

Reasoning

The court record shows Gumbo & Associates Advocates only entered appearance for the 1st, 2nd and 3rd defendants in February 2017; MS. Kenei and Associates later filed a notice of change. Neither Gumbo & Associates nor the 4th defendant filed any appearance, notice of appointment or defence. Consequently, the undated replying affidavit sworn by Vincent Barchok Ngochoch and the submissions had no legal standing in the proceedings.

p. 6

Legal principles established

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  • A party seeking to be enjoined in a suit must demonstrate an identifiable stake or legal interest or duty in the proceedings, and that its presence is necessary for the effective and complete adjudication of the issues.
  • Where a government institution's interest must be identified and instructions given, the mere presence of the Attorney General on record does not render joinder of that institution unnecessary.
  • An applicant for a temporary injunction must establish a prima facie case with a probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience.
  • Counsel or a party who has neither filed a memorandum of appearance, notice of appointment nor a defence is not properly on record, and filings made on that basis have no legal status.

Court orders

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  1. 1.The notice of motion dated 10th December 2019 is allowed as prayed, including the enjoinment of Antique Auctioneers as interested party and the Principal Secretary, State Department of Housing and Urban Development as 7th defendant, and the temporary injunction restraining the 4th defendant from selling or offering for sale Eldoret Municipality Block 7/277 pending hearing and determination of the suit
  2. 2.The interested party and the 7th defendant to file any response to the claim, if need be, within the next 14 days
  3. 3.Costs of the application to the applicants (allowed as prayed)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; application brought under the Civil Procedure Act and Civil Procedure Rules (Order 1 Rules 8, 9 and 10; Order 40(1)(a) and (b)) and Rule 2 and Rule 7(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Estate of Jim Kiptum Choge (Suing through the administrators), Eva Chepkurui Cherogony & 3 others v Philip Kipkemboi Rono & 6 others; Antique Auctioneers (Proposed Interested Parties) [2020] KEELC 2278 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2278/eng@2020-05-26

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