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ELCPartially AllowedHoma Bay ELC (Number not stated in judgment)· [2021] KEELC 1870 (KLR)

Samwell Odoyo Nyamala v Nyangweso Dianga Wendo & 4 others [2021] KEELC 1870 (KLR)

Environment and Land Court of Kenya
21 September 2021
GOG. M. A. Ongondo
1,988 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Homa Bay court let a land dispute proceed despite a filing error, and instead of an injunction ordered both sides to keep the land exactly as it is.

What this practically means

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Executive summary

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By a notice of motion dated 27th August 2020 under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 40 Rules 1 and 3 of the Civil Procedure Rules, the 1st defendant sought an interim injunction restraining the plaintiff from entering, cultivating, occupying or interfering with land parcel Kanyada/Kanyabala/817, together with police supervision of the orders and costs. The application was supported by the applicant's affidavit, a Homa-Bay Land Disputes Tribunal's award and photographs. The plaintiff opposed, contending the application was misconceived and an abuse of process because it was filed by a firm of advocates not on record, and that it failed the Giella v Cassman Brown threshold. The applicant responded that Momanyi Aunga and Company Advocates were on record for him and that G.S. Okoth and Company Advocates acted only for the 3rd defendant. The court framed two issues: whether the application was an abuse of process, and whether it met the threshold for the orders sought. On the first issue, the court found the notice of change of advocates marked SON-1 was filed in error, curable under Article 159(2)(d) of the Constitution and Section 19(1) of the ELC Act, applying the principle that counsel's mistake should not be visited on the client. On the second, having considered the Giella principles as reinforced in Nguruman, the discretionary nature of injunctions, the court's power under Section 13(7)(a) of the ELC Act and Article 23(3)(a), and the doctrine of lis pendens, the court granted maintenance of the status quo over the suit land in lieu of the injunction, directed the OCS Homa Bay Police Station to supervise compliance, and ordered costs of the application to be in the cause. Judgment was delivered at Homa Bay on 21st September 2021 by G. M. A. Ongondo, Judge.

Key legal issues

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01

Whether the application was fatally defective for being filed by a firm of advocates not on record

Holding

The notice of change of advocates marked SON-1 was filed in error and the irregularity is curable; the application is not an abuse of court process

Reasoning

The court noted from the record that Momanyi Aunga and Company Advocates acted for the 1st and 2nd defendants while G.S. Okoth and Company Advocates acted for the 3rd defendant. The letter NDW-1 confirmed this. Applying Article 159(2)(d) of the Constitution, Section 19(1) of the ELC Act and the principle that counsel's mistake should not be visited on the client (Shabir Din v Ram Parkash Anand), the court found the error curable.

p. 3
02

Whether the threshold for an interim injunction under Giella v Cassman Brown was met

Holding

Rather than the interim injunction sought, the appropriate order was maintenance of the status quo over the suit land pending the hearing and determination of the suit

Reasoning

The court had regard to the three Giella pillars as emphasised in Nguruman Limited v Jan Bonde Nielsen, the discretionary and equitable nature of injunctions (National Bank of Kenya v Shimmers Plaza), and its power under Section 13(7)(a) of the ELC Act and Article 23(3)(a) of the Constitution to grant interim preservation orders. Invoking lis pendens (Ogada v Mollin), it preserved the suit land by directing the parties to maintain the status quo, each occupying their respective portions.

p. 3

Legal principles established

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  • A notice of change of advocates filed in error is a curable procedural irregularity under Article 159(2)(d) of the Constitution and does not render an application an abuse of process
  • The mistake of counsel should not be visited upon a client
  • An interlocutory injunction is an equitable and discretionary remedy whose duration depends on the circumstances of each case
  • The court may apply the doctrine of lis pendens to maintain the status quo over disputed property until the suit is determined

Court orders

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  1. 1.The parties shall maintain the obtaining status quo over the suit land, LR No. Kanyada/Kanyabala/817 pending the hearing and determination of the suit, each party to possess and occupy their respective portions without interference
  2. 2.The Officer Commanding Homa Bay Police Station to oversee and supervise the implementation of the status quo order
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A and 63(e)
  • Civil Procedure Rules, 2010Order 40 Rules 1 and 3; Order 51 Rule 16
  • Constitution of Kenya, 2010Articles 23(3)(a), 40, 159(2)(d) and (e)
  • Environment and Land Court Act, 2015 (2011)Sections 13(7)(a) and 19(1)
  • Environment and Land Court Practice Directions, 2014Practice Direction number 33

Cases cited (9)

  • Giella vs Cassman Brown & Co. Ltd
    (1973) EA 358
  • Paul Gitonga Wanjau vs Githuthi Tea Factory Company and others
    (2016) eKLR
  • Tritex Industries Ltd and 3 others vs National Housing Corporation and another
    (2014) eKLR
  • Central Bank of Kenya and another vs Uhuru Highway Development Ltd and 4 others
    (1998) eKLR
  • Pan African Paper Mills Ltd vs Silvester Nyarango Obwocha
    (2018) eKLR
  • Shabir Din vs Ram Parkash Anand
    (1955) EACA Volume 22 page 48
  • Nguruman Limited vs Jan Bonde Nielsen and 2 others
    (2014) eKLR
  • National Bank of Kenya Limited vs Shimmers Plaza Limited
    (2019) KLR 278
  • Ogada vs Mollin
    (2009) KLR 620
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act (Cap 21), Order 40 Rules 1 and 3 of the Civil Procedure Rules 2010; Section 13(7)(a) of the Environment and Land Court Act, 2015; Article 23(3)(a) of the Constitution of Kenya, 2010

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, "Samwell Odoyo Nyamala v Nyangweso Dianga Wendo & 4 others [2021] KEELC 1870 (KLR)", Case Analysis (2021). Homa Bay ELC (Number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1870/eng@2021-09-21

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