Paul Gathuru Kariuki & another v Eens Limited & another [2021] KEELC 670 (KLR)
The bottom line
#Kenya's Environment and Land Court stopped a disputed Muthaiga land sale, ruling that civil fraud claims and criminal proceedings over the same property can run at the same time.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is sub judice Criminal Case No. 482 of 2012 contrary to Section 6 of the Civil Procedure Act
The preliminary objection on sub judice fails; civil and criminal proceedings may run concurrently and the two suits have different issues and outcomes.
Section 193A of the Criminal Procedure Code permits concurrent litigation of civil and criminal proceedings arising from the same issues. The civil suit concerns ownership of the land while the criminal case concerns the alleged fraudulent acts of third parties; their outcomes are independent since the criminal court cannot nullify title. Section 6 requires the same parties litigating under the same title, which is not the case here.
Whether the conditions for a temporary injunction under Giella v Cassman Brown were met
All three Giella conditions were satisfied: prima facie case, irreparable injury not compensable in damages, and balance of convenience favouring the Plaintiffs who are in possession.
The 1st Defendant did not deny the Plaintiffs were registered proprietors and never transferred the property to him; his status as complainant in a criminal case alleging fraudulent sale is an admission the Plaintiffs did not sell to him. Since the property has already been transferred, refusal of the injunction could occasion irreparable injury, and the Plaintiffs are in possession.
Legal principles established
#- The pendency of criminal proceedings over the same subject matter does not bar concurrent civil proceedings, per Section 193A of the Criminal Procedure Code.
Court orders
#- 1.A temporary injunction restraining the 1st Defendant, its agents, servants or persons claiming through it from selling, transferring, assigning, building, entering, charging or otherwise dealing with LR No. 15083/39 Muthaiga North Nairobi pending hearing and final determination of the suit
- 2.Prohibition, by way of temporary injunction, of all further registration of change of ownership, charging, mortgaging, leasing, subleasing, allotment, use, occupation or possession of any right, title or interest over the suit premises in the Nairobi registry, government departments and all other registering authorities pending hearing and determination of the suit
- 3.The 1st Defendant's Notice of Preliminary Objection dated 13th September 2021 dismissed with costs
- 4.The 1st Defendant to pay the costs of the application
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit land LR No. 15083/39 Muthaiga North, Nairobi
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Gathuru Kariuki & another v Eens Limited & another [2021] KEELC 670 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/670/eng@2021-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.