Joseph Kiplagat Kogo v Joseph Kipsanga Bor & another [2021] KEELC 1358 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Temporary injunction - Giella principles
A temporary injunction issued restraining eviction or interference with the 1st and 2nd defendants' possession pending hearing of the main suit
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.
Joinder of necessary parties
Joinder of Erastus Kipkurui Yego and the Chairperson of Chemelil Squatters as 3rd and 4th defendants declined
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.
Leave to amend Defence and counterclaim
Amendment prayer declined as consequential to the refusal of joinder
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.
Legal principles established
#- 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
#- 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.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.Costs in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.