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ELCDismissedNot stated in judgment (Notice of Motion dated 27th November, 2019)· [2020] KEELC 2744 (KLR)

John Njoroge Kinyua & another v Wallen Gitau Wangai & 2 others [2020] KEELC 2744 (KLR)

Environment and Land Court
12 May 2020
COCHRISTINE OCHIENG
1,903 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to freeze land development where buyers had paid and registered ownership, showing courts require solid evidence before preserving status quo.

What this practically means

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Executive summary

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This was an interlocutory application before the Environment and Land Court by Notice of Motion dated 27th November 2019, brought under section 13(7) of the Environment and Land Court Act, sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 10(1)(a) and Order 51 Rule 1 of the Civil Procedure Rules. The Plaintiffs sought preservation of land parcel NGONG/NGONG/65358, an order restraining the 3rd Defendant from entering upon, constructing on or further developing that parcel, and a restraining order against the 1st and 2nd Defendants from selling, transferring or disposing of the suit parcels, pending the hearing and determination of the main suit. The Plaintiffs alleged a fraudulent subdivision and sale and claimed prior developments including a borehole and iron-sheet house. The 1st and 2nd Defendants denied any interest in the suit lands, stating the parcels were subdivisions of NGONG/NGONG/1418, that the Plaintiffs' family was paid Kshs. 600,000/- and that the other parcels belong to families in occupation who are not parties. The 3rd Defendant asserted it is a bona fide purchaser for value and registered proprietor. The court framed a single issue: whether to grant a preservation order of status quo pending the outcome of the suit. It noted the Plaintiffs' father was a beneficial owner under the sale agreement, that the 1st Plaintiff acknowledged receipt of the purchase price and participated in sale meetings, none of which was controverted. Applying Thugi River Estate and the Practice Directions (Rule 32), the court declined to restrain the 3rd Defendant from developing its land. Since the 1st and 2nd Defendants denied ownership of 65357 and 65359, no current searches were furnished and the new owners were not parties, reliance on Mbaki led the court to refuse status quo orders over those parcels too. The application was dismissed with costs to the Defendants.

Key legal issues

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01

Whether a preservation/status quo order should issue over NGONG/NGONG/65358 pending determination of the main suit

Holding

The application for status quo orders against the 3rd Defendant was refused

Reasoning

It was not in dispute that the 3rd Defendant is the registered proprietor of NGONG/NGONG/65358, having purchased it from fourteen families including the Plaintiffs'. The 1st Plaintiff acknowledged receipt of Kshs. 600,000/- as purchase price and participated in meetings on the sale; these averments were uncontroverted. Relying on Thugi River Estate, status quo orders are granted after balancing all factors and circumstances, and the Plaintiffs failed to demonstrate a basis to restrain the registered proprietor from developing its land.

p. 3
02

Whether status quo orders could issue in respect of NGONG/NGONG/65357 and 65359

Holding

Status quo orders were refused in respect of these parcels

Reasoning

The 1st and 2nd Defendants denied ownership of the two parcels, and no party furnished the latest Certificate of Official Searches to confirm current proprietors. The Plaintiffs did not controvert the Defendants' averments. Applying Mbaki & Others v Macharia, orders cannot issue against persons who are not parties to the suit; since the alleged new owners were not before the court, no orders could issue against them.

p. 3

Legal principles established

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  • Status quo orders are issued through judicial process after a balance of all factors and circumstances, and maintain the then existing state of affairs, not future circumstances
  • The court cannot issue orders against a person who is not a party to the suit
  • Under the Practice Directions on proceedings in the Environment and Land Courts, parties are encouraged to agree to maintain status quo at the interlocutory stage, failing which the Judge exercises discretion bearing in mind the overriding interests of justice

Court orders

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  1. 1.The Notice of Motion Application dated the 27th November, 2019 is dismissed
  2. 2.Costs of the application awarded to the Defendants

Authorities

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Legislation

  • Environment and Land Court ActSection 13(7)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 40 Rule 10(1)(a) and Order 51 Rule 1
  • Practice Directions on Proceedings in the Environment and Land Courts, and on Proceedings relating to the Environment and the Use and Occupation of, and Title to Land and Proceedings in Other CourtsRule 32

Cases cited (6)

  • Aniello Storelli V Damaris Mwongeli and Another
    (2019) eKLR
  • Salim Seif Ambunya Andanje & Another V Alex Jepkoech Yano & Another
    (2019) eKLR
  • Mbaki & Others V Macharia & Another
    (2005) 2 EA 206
  • Thugi River Estate Limited & Another V National Bank of Kenya Limited & 3 Others
    (2015) eKLR
  • International Air Transport Association & Another V Akarim Agencies Company Limited & 2 Others
    (2014) eKLR
  • American Cynanid Co.–v- Ethicon
    [1975] 1 All ER 504 at 511
Jurisdiction invoked
Section 13(7) of the Environment and Land Court Act; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rule 10(1)(a) and Order 51 Rule 1 of the Civil Procedure Rules

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, "John Njoroge Kinyua & another v Wallen Gitau Wangai & 2 others [2020] KEELC 2744 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 27th November, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2744/eng@2020-05-12

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