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ELCPartially AllowedELC No. E256 of 2021· [2021] KEELC 1167 (KLR)

Kent Estates Limited v Zakaria Gathoga Ndungu [2021] KEELC 1167 (KLR)

Environment and Land Court
3 November 2021
3,135 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 stayed a land dispute and refused an injunction because the buyer bought land already covered by existing court orders.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (E. K. Wabwoto J) determines two competing interlocutory applications: the Plaintiff's Notice of Motion dated 12th July 2021 seeking removal of the Defendant's excavator and tipper lorry from L.R No. 27903/292 and 27903/293, Embakasi, and a temporary injunction against trespass; and the Defendant's Notice of Motion dated 19th September 2021 seeking a stay or dismissal of this suit as sub judice Nairobi ELC No. 7 of 2012 and striking out of the pleadings for abuse of process. The court framed two issues: whether the suit was sub judice, and whether the Plaintiff met the Giella v Cassman Brown injunction threshold. On the first issue, although the parties, causes of action and reliefs differ between the suits, the court found a nexus over the same properties, over which Nyamweya J had issued unvaried restraining orders in 2012 and 2013, and stayed this suit pending determination of the earlier consolidated suit. On the second issue, the court held the Plaintiff established no prima facie case, since it acquired the properties in 2019 from Ecoprime Properties Limited despite the subsisting orders barring dealings; irreparable damage was not demonstrated and the balance of convenience did not favour the Plaintiff. The Plaintiff's application was dismissed; the Defendant's application was partially allowed. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the suit is sub judice Nairobi ELC No. 7 of 2012

Holding

The suit is not strictly sub judice (parties, causes of action and reliefs differ) but has a sufficient nexus over the same properties to warrant a stay under Section 6 of the Civil Procedure Act pending determination of the earlier suit

Reasoning

The court noted the parties and reliefs in the two suits differ, so strict res sub judice was not met. However, both suits concern L.R No. 27903/292 and 27903/293, over which Nyamweya J had issued unvaried restraining orders on 12th January 2012 and 25th February 2013. To protect the integrity of the court process and avoid contradictory verdicts, the later suit was stayed pending the earlier suit.

p. 3
02

Whether the Plaintiff met the Giella v Cassman Brown threshold for a temporary injunction

Holding

No prima facie case was established, no irreparable damage demonstrated and the balance of convenience does not favour the Plaintiff, who acquired the properties in 2019 despite existing restraining orders

Reasoning

Applying Giella v Cassman Brown, the court held the Plaintiff could not show an infringed right since its 2019 acquisition from Ecoprime Properties Limited occurred while orders barring any dealings with the suit properties were in force. The Plaintiff also failed to demonstrate irreparable damage, and the balance of convenience did not favour granting the injunction. The Plaintiff's application was dismissed.

p. 4

Legal principles established

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  • Where two suits involve the same subject matter and one is pending, the later suit may be stayed under Section 6 of the Civil Procedure Act to await the outcome of the earlier suit
  • A party cannot claim a prima facie case or protection of property rights where acquisition occurred in the face of subsisting court orders restraining dealings with the property

Court orders

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  1. 1.The suit pending/proceedings herein, is hereby stayed under Section 6 of Civil Procedure Act, pending determination of Nairobi ELC No. 7 of 2012 (Consolidated with Nairobi ELC No. 814 of 2013) Benson Ritho Muriithi (Suing as the Administrator of the Estate of the late Joseph Maingi Muriithi) vs George Ngugi Karungo & Others
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Land Registration ActSections 25 and 26
  • Constitution of Kenya, 2010Article 40

Cases cited (5)

  • Naftali Ruthu Kinyua vs Thuita Gachure & Another
    [2015] eKLR
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    [2020] eKLR
  • David Ndii & others versus Attorney General & Others
    2021 eKLR
  • Giella vs Cassman Brown Co. Ltd
    (1973) EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 1215
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land; stay sought under Section 6 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, "Kent Estates Limited v Zakaria Gathoga Ndungu [2021] KEELC 1167 (KLR)", Case Analysis (2021). ELC No. E256 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1167/eng@2021-11-03

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