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ELCPartially AllowedELC 119 of 2020· [2021] KEELC 757 (KLR)

Simon Kiarie Gatiba & 2 others v Jane Watiri Kimani (Suing as the Administrator of the Estate of Pius Kimani Mutua Deceased) [2021] KEELC 757 (KLR)

Environment and Land Court
11 November 2021
1,495 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 Applicants, claiming to have occupied the suit land openly, continuously and without interruption for over 28 years and to have buried kin there, moved the Environment and Land Court at Thika by a notice of motion dated 27/11/2020 seeking an interim stay of eviction pending determination of their application and Originating Summons claiming title by adverse possession. They also sought a stay of proceedings in ELC 7 of 2020 before the Senior Principal Magistrate's Court at Limuru, instituted by the Respondent seeking their eviction, or alternatively consolidation of the two suits, contending the magistrates' court lacks jurisdiction over adverse possession claims. The Respondent, sued as legal administrator of her late husband's estate (the registered owner), opposed the application, asserting the suit was res judicata given earlier proceedings (RMCCC No 131 of 2001 and HCCA No 757 of 2002) in which the trial court's decision dividing the land equally was reversed on appeal and the land vested in her husband. The Applicants relied on the Giella v Cassman Brown principles and asked to be heard in the spirit of the Constitution. The court framed three issues: entitlement to interim injunction, stay of the Limuru proceedings, and consolidation. Applying Giella and Order 40 Rule 1 of the Civil Procedure Rules, the court held status quo should be maintained and restrained the Plaintiffs from alienating or parting with possession pending trial. Exercising jurisdiction under section 18 of the Civil Procedure Act, the court withdrew the Limuru file and consolidated both suits, with ELC 119 of 2020 as the lead file. The application partially succeeded with no orders as to costs.

Key legal issues

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01

Whether the Applicants were entitled to an interim injunction/stay of eviction

Holding

Interim relief granted: status quo to be maintained and the Plaintiffs restrained from alienating or parting with possession of the suit land pending hearing and determination of the suit.

Reasoning

Applying the Giella v Cassman Brown principles and Order 40 Rule 1 of the Civil Procedure Rules, the court noted it was not in dispute that the Plaintiffs occupy the suit land, a fact conceded by the Respondent. To preserve the property pending trial, status quo was to be maintained and the Plaintiffs restrained from selling, charging, disposing of or parting with possession of the land.

p. 2
02

Whether the Limuru proceedings (ELC 7 of 2020) should be stayed or the suits consolidated

Holding

The subordinate court file was withdrawn/transferred to the ELC and consolidated with ELC 119 of 2020, with ELC 119 of 2020 as the lead file.

Reasoning

Though the Limuru proceedings were not produced, the court gleaned from the pleadings that both suits involve the same parties suing under the same title. Exercising its power under section 18 of the Civil Procedure Act, and to forestall conflicting decisions and save judicial time, the court consolidated the suits, finding no prejudice or hardship would result.

p. 3
03

Respondent's claim of res judicata based on earlier litigation (RMCCC No 131 of 2001 and HCCA No 757 of 2002)

Holding

Not determined at this interlocutory stage; recorded as the Respondent's contention that the Applicants refuse to vacate despite a High Court judgment vesting the land in her late husband.

Reasoning

The Respondent contended the suit was res judicata on account of prior decisions in which the trial court ordered the land divided equally, a decision reversed on appeal, with the High Court vesting the land in her husband. The court did not rule on this issue in the ruling, as it dealt only with the interim injunction and consolidation prayers.

p. 1

Legal principles established

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  • Principles for grant of interlocutory injunction: prima facie case with probability of success; irreparable harm not adequately compensable by damages; balance of convenience where in doubt.
  • Where two suits involve the same parties suing under the same title, they may be consolidated to forestall conflicting decisions and save judicial time.
  • The High Court (ELC) may withdraw a suit pending in a subordinate court and try, transfer or retransfer it under section 18 of the Civil Procedure Act.

Court orders

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  1. 1.Status quo to be maintained pending the hearing and determination of the suit; the Plaintiffs restrained from selling, charging, disposing of or in any way parting with possession of the suit land (Prayer b granted as per paragraph 13 of the ruling).
  2. 2.Prayer c granted by way of transfer of the file in ELC 7 of 2020 (Limuru) to this Court for consolidation with ELC 119 of 2020, with ELC 119 of 2020 as the lead file.
  3. 3.No orders as to costs.

Authorities

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Legislation

  • Civil Procedure ActSection 18
  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (1)

  • Giella Vs Cassman Brown Co. Ltd
    1973 E.A. 358
Jurisdiction invoked
Section 18 of the Civil Procedure Act

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, "Simon Kiarie Gatiba & 2 others v Jane Watiri Kimani (Suing as the Administrator of the Estate of Pius Kimani Mutua Deceased) [2021] KEELC 757 (KLR)", Case Analysis (2021). ELC 119 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/757/eng@2021-11-11

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