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ELCPartially AllowedNotice of Motion application dated 29.7.2020 in the main suit (NANDI/CHEMELIL SCHEME/657)· [2021] KEELC 1358 (KLR)

Joseph Kiplagat Kogo v Joseph Kipsanga Bor & another [2021] KEELC 1358 (KLR)

Environment and Land Court
21 October 2021
1,736 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court stopped a landowner from evicting occupants of Chemelil Scheme land, ruling that proven occupation is enough to protect possession while a case is decided.

What this practically means

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Executive summary

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The 1st and 2nd defendants, who claim to be squatters settled through the Chemelil Settlement Scheme, moved the court by Notice of Motion dated 29.7.2020 seeking a temporary injunction restraining the plaintiff from evicting them from, or interfering with their possession and occupation of, NANDI/CHEMELIL/SCHEME/657; the joinder of Erastus Kipkurui Yego (the initial allottee who transferred the parcel to the plaintiff) and the Chairperson of Chemelil Squatters as 3rd and 4th defendants; and leave to amend their Defence and counterclaim in terms of a draft pleading. The plaintiff, who avers he purchased the parcel from Mr Yego as a bona fide purchaser for value, opposed the application. The court applied the Giella Cassman Brown principles and found that since both the plaint (paragraph 4) and the plaintiff's replying affidavit (paragraph 21) confirmed the defendants were in occupation, the applicants had established a prima facie case as defined in Mrao Limited, and the balance of convenience lay in preserving the status quo pending trial. A temporary injunction was therefore granted in terms of prayer 2. On joinder, although Mr Yego's necessity was common ground, the court held that the plaintiff's reliefs were only against the 1st and 2nd defendants, and following Carol Construction Engineers Ltd v Naomi Chepkorir Langat declined to impose parties against whom no relief was sought. The applicants were granted liberty to introduce the proposed defendants as parties to their counterclaim under Order 7 Rules 8 and 9. The consequential amendment prayers were refused. The application was allowed in terms of prayer 2 only, prayers 3, 4 and 5 disallowed, with costs in the cause.

Key legal issues

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01

Temporary injunction - Giella principles

Holding

A temporary injunction issued restraining eviction or interference with the 1st and 2nd defendants' possession pending hearing of the main suit

Reasoning

The court applied the Giella Cassman Brown principles. The applicants are in occupation of the suit property, a fact confirmed by paragraph 4 of the plaint and paragraph 21 of the plaintiff's replying affidavit. Possession established a prima facie case as defined in Mrao Limited, and the balance of convenience favours preserving the status quo at the interlocutory stage without determining the suit.

p. 2
02

Joinder of necessary parties

Holding

Joinder of Erastus Kipkurui Yego and the Chairperson of Chemelil Squatters as 3rd and 4th defendants declined

Reasoning

Although both parties agreed Yego is a necessary party and Order 1 Rules 3 and 10(2)(4) confer discretion to join necessary parties, the plaintiff's reliefs are directed only at the 1st and 2nd defendants. Following Carol Construction Engineers Ltd v Naomi Chepkorir Langat, imposing defendants against whom the plaintiff seeks no relief would cause hardship. The applicants may add them to the counterclaim under Order 7 Rules 8 and 9.

p. 3
03

Leave to amend Defence and counterclaim

Holding

Amendment prayer declined as consequential to the refusal of joinder

Reasoning

The third substantive prayer to amend the Defence and counterclaim was tied to the joinder of the proposed defendants. Since joinder was declined, the amendment in terms of the draft amended Defence and counterclaim, and the consequential deeming of the amended pleading as filed, both fail.

p. 3

Legal principles established

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  • A party in occupation of suit land, as acknowledged by the opposing party, establishes a prima facie case and the balance of convenience favours preserving the status quo at the interlocutory stage
  • The court will not compel a plaintiff to litigate against persons against whom the plaintiff seeks no relief; proposed defendants necessary to a counterclaim may be introduced as parties to the counterclaim rather than as co-defendants to the suit

Court orders

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  1. 1.Temporary injunction restraining the plaintiff and/or his servants, employees, agents and/or any person claiming through him from evicting the 1st and 2nd defendants, ploughing, selling, subdividing, transferring and/or in any way interfering with the 1st and 2nd defendants' use, occupation and possession of the parcel of land known as NANDI/CHEMELIL/SCHEME/657 pending the hearing and determination of the main suit
  2. 2.Prayers 3, 4 and 5 of the Notice of Motion dated 29.7.2020 (joinder of Erastus Kipkurui Yego and the Chairperson of Chemelil Squatters, leave to amend the Defence and counterclaim, and deeming the amended Defence and counterclaim filed) disallowed
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 3, 10(2)(4)
  • Civil Procedure RulesOrder 7 Rules 8 and 9

Cases cited (4)

  • Giella Cassman Brown
    1973 EA 358
  • Mrao Limited Vs First American Bank of Kenya
  • Samuel Kamiri Crispoh vs John Njeru Kahihu
    2015 eKLR
  • CAROL CONSTRUCTION ENGINEERS LTD V NAOMI CHEPKORIR LANGAT
    [2019] eKLR
Jurisdiction invoked
Not expressly stated; application brought under Order 1 Rule 3, 10(2)(4) and Order 7 Rules 8 and 9 of the Civil Procedure Rules for injunction, joinder and leave to amend

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, "Joseph Kiplagat Kogo v Joseph Kipsanga Bor & another [2021] KEELC 1358 (KLR)", Case Analysis (2021). Notice of Motion application dated 29.7.2020 in the main suit (NANDI/CHEMELIL SCHEME/657). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1358/eng@2021-10-21

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