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ELCOtherNaivasha ELC Case of 2018 (Plaint dated 24th May 2018)· [2020] KEELC 3727 (KLR)

Esther Watiri Kahora v Philisia Nyambura & 3 others [2020] KEELC 3727 (KLR)

Environment and Land Court
20 January 2020
DOD. O. Ohungo
1,705 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff sued the 1st and 2nd defendants, registered owners of Naivasha/Mwiciringiri Block 2/771 and 2/772 (subdivisions of land of her deceased mother, Wambui Waweru), alleging they misled the deceased into subdividing and transferring the properties, and that the 3rd defendant registered the subdivisions without Land Control Board consent. She sought a declaration that the subdivisions and titles were null and void, cancellation of the titles, and later a temporary injunction against eviction or dealing with the properties by Notice of Motion dated 15th October 2018. The 1st and 2nd defendants responded with a preliminary objection dated 21st November 2018 contending the suit was res judicata, judgment having been delivered in their favour in Nakuru ELC 40 of 2013, and that the suit was frivolous and an abuse of process. Both matters were canvassed together by written submissions. The court applied the Mukisa Biscuit test and held the preliminary objection invalid because res judicata required ascertainment of facts and scrutiny of the prior pleadings and judgment, which cannot be done on a pure point of law; it dismissed the objection with costs to the plaintiff, while noting the defendants could raise res judicata by formal application. On the injunction, applying Giella v Cassman Brown as restated in Nguruman, the court found no prima facie case: the supporting affidavit bore no annexures, and the documents showed the defendants were registered on 25th April 2003, five months before the deceased died on 21st September 2003, undermining the claim that the deceased was misled. The registered proprietors enjoy statutory protection under Sections 24 and 26 of the Land Registration Act. The Notice of Motion was dismissed with costs to the 1st and 2nd defendants.

Key legal issues

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01

Validity of the preliminary objection on res judicata

Holding

The preliminary objection was invalid because determining res judicata required ascertainment of facts and review of the pleadings and judgment in Nakuru ELC 40 of 2013, which cannot be done on a pure point of law

Reasoning

Applying Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, a valid preliminary objection must be a pure point of law argued on the assumption that the facts pleaded by the other side are correct. The objection here required the court to ascertain whether the issues in this suit were directly and substantially in issue and finally decided in Nakuru ELC 40 of 2013. The plaintiff's pleadings did not disclose the prior suit's pleadings, and the defendants could not introduce evidence to support the objection.

p. 2
02

Whether the plaintiff established a prima facie case for an interlocutory injunction

Holding

The plaintiff failed to establish a prima facie case with a probability of success, so the application failed at the first Giella hurdle

Reasoning

The supporting affidavit had no annexures supporting the allegations that the deceased was misled or that eviction was threatened. The documents showed the 1st and 2nd defendants were registered on 25th April 2003 while the deceased died on 21st September 2003, five months later. As registered proprietors they enjoy protection under Sections 24 and 26 of the Land Registration Act. Following Nguruman, the remaining Giella limbs need not be considered.

p. 2

Legal principles established

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  • A preliminary objection on res judicata cannot succeed where the prior judgment and pleadings must be ascertained through evidence; res judicata must either emerge clearly from the plaintiff's pleadings or be proved through a formal application
  • The Giella conditions are applied sequentially; where no prima facie case is established, irreparable injury and balance of convenience need not be considered

Court orders

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  1. 1.The Preliminary Objection dated 21st November 2018 is dismissed with costs to the plaintiff
  2. 2.Notice of Motion dated 15th October 2018 is dismissed with costs to the 1st and 2nd defendants

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Land Registration ActSections 24 and 26

Cases cited (5)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • George Kamau Kimani & 4 others v County Government of Trans-Nzoia & another
    [2014] eKLR
  • Muhu Holdings Limited v James Muhu Kangari
    [2017] eKLR
  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating to title to land

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, "Esther Watiri Kahora v Philisia Nyambura & 3 others [2020] KEELC 3727 (KLR)", Case Analysis (2020). Naivasha ELC Case of 2018 (Plaint dated 24th May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3727/eng@2020-01-20

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