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ELCPartially AllowedNotices of Motion dated 21st January, 2020 and 17th February, 2020· [2021] KEELC 1987 (KLR)

Hassan Kiptoo Kosgey v Spring West Kenya Ltd [2021] KEELC 1987 (KLR)

Environment and Land Court
22 September 2021
5,656 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to revisit an earlier ruling on a land dispute but allowed the plaintiff to add five new defendants to clarify the property's disputed ownership.

What this practically means

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Executive summary

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The Environment and Land Court (S. M. Kibunja, J) delivered a ruling on two applications by the plaintiff, Hassan Kiptoo Koskey, in a land dispute with Spring West Kenya Limited over L.R. No. 8508/2, a 15-acre parcel. The first application (21st January 2020) sought an injunction and re-issue of a status quo order to restrain the defendant from evicting the plaintiff, destroying structures or cutting down trees pending trial. The defendant opposed, arguing the application was res judicata because the court, in a ruling of 25th July 2019, had discharged an earlier status quo order after finding the plaintiff had made material non-disclosure, since the suit property was not registered in the plaintiff's name. The court applied Section 7 of the Civil Procedure Act and the conjunctive res judicata test in IEBC v Maina Kiai, agreed that the status quo issue had already been heard and determined, and dismissed the first application with costs, holding the plaintiff should have sought review or appeal. The second application (17th February 2020) sought leave to amend the plaint and enjoin Equity Bank, Elite Ventures Limited, Highland Valuers, Purple Royal Investment and Soy Country Club (1987) Limited as 2nd to 6th defendants, to illuminate the disputed chain of title through the charge and public auction. Applying Order 1 Rule 10(2) and the joinder principles in Lucy Nungari Ngigi and Civicon, the court allowed the amendment and joinder, holding it prudent to bring all relevant parties on board so the title dispute could be effectually and completely resolved, without prejudice to the defendant who may respond. However, because the plaintiff knew of these parties before filing suit, costs were awarded to the defendant on both applications. The plaintiff was ordered to file and serve the amended plaint within fourteen days.

Key legal issues

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01

Whether the application for a status quo order dated 21st January 2020 was res judicata

Holding

It was res judicata; the status quo issue had been heard and determined in the ruling of 25th July 2019, and the plaintiff should have sought review or appeal

Reasoning

The gist of the application revolved around a preservatory order of status quo, an issue already determined between the same parties by a court of competent jurisdiction on 25th July 2019 when the earlier status quo order was discharged for material non-disclosure. Under Section 7 of the Civil Procedure Act, all elements must be satisfied conjunctively, and they were. The plaintiff could not ask the court to overturn its own ruling; review or appeal were the proper avenues.

p. 4
02

Whether the plaint should be amended to enjoin five parties as 2nd to 6th defendants

Holding

Yes; leave was granted in terms of prayers 2 and 3 because the origin of title to the suit land is in dispute and the intended parties are necessary for a complete determination, though costs were awarded to the defendant

Reasoning

Order 1 Rule 10(2) permits enjoining a party whose presence is necessary to enable the court to effectually and completely adjudicate on all questions. Given that the dispute concerns the origin of title and the chain of sale through the chargee, auction purchaser and sub-purchasers, joining the parties serves justice. The defendant suffers no prejudice as it can respond to the amended plaint, but the plaintiff, having known of these parties before filing suit, must pay the defendant's costs.

p. 6

Legal principles established

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  • For res judicata to apply, all elements of Section 7 of the Civil Procedure Act must be satisfied conjunctively
  • A party cannot invite a court to sit on its own judgment; the proper remedy against a ruling is review or appeal
  • Joinder of necessary parties under Order 1 Rule 10(2) is a discretionary power exercisable at any stage and should be exercised in the interest of justice to effectually and completely adjudicate on all questions

Court orders

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  1. 1.The plaintiff's notice of motion dated 21st January 2020 is dismissed with costs
  2. 2.The plaintiff's notice of motion dated 17th February 2020 is allowed in terms of prayers 2 and 3, with costs to the defendant nevertheless
  3. 3.The plaintiff to file and serve the amended plaint within fourteen (14) days from the date of the ruling

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSections 1, 1A, 3(e)
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 7 Rule 9
  • Civil Procedure RulesOrder 8 Rule 3
  • Limitation Actreferenced in amendment principles

Cases cited (14)

  • Susan Nyambura Mwathi -vs- Duncan Kiria Kabete
    (2019) eKLR
  • Nooh Mohamed Janmohammed —vs- Kassam Ali Virji Madhani
    (1953) 20 LRK
  • Yego —vs- Tuiya & Another
    (1986) KLR 726
  • Independent Electoral & Boundaries Commission vs. Maina Kiai & 5 Others
    [2017] eKLR
  • HENDERSON VS HENDERSON
    (1843-60) ALL E.R. 378
  • Kenya Commercial Bank Limited vs Muiri Coffee Estate Limited & Another
    [2016] eKLR
  • John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others
    [2015] eKLR
  • Suleiman Said Shabhal vs Independent Electoral & Boundaries Commission & 3 Others
    [2014] eKLR
  • Ochieng and others -vs- First National Bank of Chicago
    Civil Appeal No. 147 of 1991
  • J.C Patel —vs- D. Joshi
    1952 19 EACA 12
  • Abdul Karim Khan Vs Mohammed Roshan
    (1965) E.A. (C.A), quoted in Kisumu CACA No. 115 of 2016 Catherine Koriko & 3 Others vs. Evaline Rosa
  • LUCY NUNGARI NGIGI & 128 OTHERS V NATIONAL BANK OF KENYA LIMITED & ANOTHER
    [2015] eKLR
  • CIVICON LIMITED V. KIVUWATT LIMITED & 2 OTHERS
    [2015] eKLR
  • PETER GICHUKI KING'ARA V INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 2 OTHERS
    [2014] eKLR
Jurisdiction invoked
Environment and Land Court Act (original jurisdiction over land disputes); applications under Sections 1, 1A and 3(e) of the Civil Procedure Act and Order 1 Rule 10(2) and Order 8 Rule 3 of the Civil Procedure Rules

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, "Hassan Kiptoo Kosgey v Spring West Kenya Ltd [2021] KEELC 1987 (KLR)", Case Analysis (2021). Notices of Motion dated 21st January, 2020 and 17th February, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1987/eng@2021-09-22

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