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ELCDismissedNot stated in judgment (Plaint dated 7th February 2019)· [2021] KEELC 1703 (KLR)

Andrew Karanja Ndaba & another v Pasadena Systems Limited [2021] KEELC 1703 (KLR)

Environment and Land Court
7 October 2021
3,111 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed you cannot win your whole case through an interim application—final orders require a full hearing.

What this practically means

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Executive summary

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The Plaintiffs/Applicants filed a plaint dated 7th February 2019 and a contemporaneous Notice of Motion seeking, inter alia, an order compelling the Defendants to release the original title documents for Massionatte Number 9, LR No. 209/1705/3, Woodlands Road, Nairobi, and a computation of losses allegedly suffered through the Defendants' willful negligence. The 1st Defendant/Respondent opposed the application by replying affidavit, explaining that the transaction had been handled by the 2nd Defendant, an advocate, who held the title documents and who had since been released from the proceedings by consent. The application was canvassed by written submissions. The court framed four issues: whether final relief can be granted on an interlocutory application; whether specific performance can issue at that stage; whether special damages could be claimed in the application; and whether the application was an abuse of process. The court held that the reliefs sought mirrored the plaint and would have disposed of the entire suit at an interlocutory stage, which is untenable; that specific performance is a discretionary equitable remedy grantable only after full hearing; that willful negligence must be pleaded with particulars and special damages proved after plenary hearing; and that, since the title documents had been released to and were in the custody of the Plaintiffs, continuing the application was futile and abusive. The Notice of Motion was dismissed with costs to the Defendant/Respondent.

Key legal issues

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01

Whether final reliefs can be granted via an interlocutory application

Holding

No - the reliefs sought mirrored those in the plaint and would have concluded the entire suit at an interlocutory stage

Reasoning

The court observed that the prayers on the Notice of Motion corresponded word for word with the plaint, meaning the application sought finality disguised as interlocutory relief. Granting it would dispose of the main suit before plenary hearing, which is unorthodox, unknown to law and inimical to the rule of law. The court relied on Headmaster Kiembeni Baptist Primary School to fortify this position.

p. 2
02

Whether specific performance can issue on an interlocutory application

Holding

No - it is a discretionary equitable remedy grantable only after full hearing

Reasoning

Applying Reliable Electrical Engineers v Mantrac Kenya Ltd, the court held that specific performance is discretionary and based on the existence of a valid enforceable contract, and can only be determined after full hearing. The plaintiffs were attempting to sidestep procedure and natural justice by procuring such an order via an interlocutory application.

p. 3
03

Whether special damages for willful negligence could be claimed in the application

Holding

No - particulars must be pleaded and such claims resolved only after plenary hearing with evidence and cross-examination

Reasoning

Under Order 2 rule 10(1) of the Civil Procedure Rules, a party pleading willful negligence must supply particulars thereof. Even with particulars, such claims can only be resolved after plenary hearing comprising evidence in chief and cross-examination. No such pleadings were availed, and none could be, in an interlocutory application of this nature.

p. 4
04

Whether the application amounted to abuse of court process

Holding

Yes - seeking orders for documents already in the applicants' custody is futile and an abuse of process

Reasoning

It was common ground that the title documents had been released to the plaintiffs, who conceded this and withdrew the claim against the 2nd Defendant. Continuing to seek the documents against the 1st Defendant, who did not have them, would render any order unenforceable and in vain. Relying on Kalya Soi Farmers and Muchanga Investments, the court found the conduct reckless and abusive of due process.

p. 5

Legal principles established

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  • An interlocutory application can only give rise to interlocutory reliefs and not final or substantive orders
  • Specific performance is a final equitable remedy that can only issue upon full hearing of a case
  • Special damages and willful negligence must be specifically pleaded with particulars and proved after plenary hearing
  • Courts must not act in vain; pursuing orders for documents already in a party's custody is an abuse of court process

Court orders

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  1. 1.The Notice of Motion Application dated 7th February 2019 is dismissed
  2. 2.Costs awarded to the Defendant/Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 10(1)

Cases cited (7)

  • HEADMASTER KIEMBENI BAPTIST PRIMARY SCHOOL & another v PASTOR OF KIEMBENI BAPTIST CHURCH
    [2005] eKLR
  • Mbuthia v Jimba Credit Finance Corporation & Another
    (1988) KLR 1
  • Reliable Electrical Engineers (K) Ltd v Mantrac Kenya Limited
    [2006] eKLR
  • PROVINCIAL INSURANCE OF EAST AFRICA LTD v MORDEKAI MWANGA NANDWA
    [1996] eKLR
  • Kalya Soi Farmers Cooperative Society v Paul Kirui & another
    [2013] eKLR
  • MUCHANGA INVESTMENTS LTD v SAFARIS UNLIMITED (AFRICA) LTD & 2 others
    [2009] eKLR
  • SARAK v KOTOYE
    (1992) 9 NWLR (pt 264) 156 at 188-189
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit property LR No. 209/1705/3, Nairobi

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Andrew Karanja Ndaba & another v Pasadena Systems Limited [2021] KEELC 1703 (KLR)", Case Analysis (2021). Not stated in judgment (Plaint dated 7th February 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1703/eng@2021-10-07

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