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ELCPartially AllowedNotice of Motion dated 10th September 2020 (suit particulars not stated in judgment)· [2021] KEELC 2274 (KLR)

George Igogo Munyinyi v Priscilla Njoki Igogo & 9 others [2021] KEELC 2274 (KLR)

Environment and Land Court
29 July 2021
2,283 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Thika protected a family's share of disputed Kiambu land until trial, but declined to cancel freshly issued titles without hearing full evidence.

What this practically means

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Executive summary

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The Plaintiff, a co-administrator and beneficiary of the Estate of David Igogo Munyinyi (deceased), moved the Environment and Land Court at Thika by Notice of Motion dated 10th September 2020 seeking a temporary injunction over Land Parcel Kiambaa/Ruaka/1324 (subdivided into parcels 4932-4948), a stay of Succession Cause No. 186 of 2013 at Kiambu, an order directing the Land Registrar to register a caution over the subdivided parcels, and cancellation of titles issued to the 2nd-8th Defendants on 17th July 2020. The 1st-8th Defendants opposed through a joint Replying Affidavit of Peter Mwaura Igogo, contending the subdivision occurred during the deceased's lifetime, that the Plaintiff received his share elsewhere, and that the application was res judicata given a similar 2016 application already determined. Applying Giella v Cassman Brown, the court found a prima facie case: the Plaintiff holds a beneficial interest in the suit property, supported by unappealed orders of Hon. Kituku (PM) maintaining status quo, with irreparable harm and balance of convenience favouring preservation. On res judicata, the court held the defence cannot be raised in a Replying Affidavit as it requires probing of evidence. Allowing the application 'in terms of prayers No. 3 and 4 only' with other prayers deferred to trial and costs in the cause, the ruling nonetheless internally conflicts with its own reasoning that title cancellation is not grantable at the interlocutory stage and that a stay of the succession cause would be prudent.

Key legal issues

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01

Whether the Plaintiff deserved the orders sought (injunction, stay, caution, cancellation of titles)

Holding

Plaintiff established a prima facie case with beneficial interest over the suit property; irreparable harm and balance of convenience favoured maintaining the status quo; application allowed in terms of prayers 3 and 4 only

Reasoning

Applying Giella v Cassman Brown, the court found the applicant is a joint administrator with beneficial interest in Kiambaa/Ruaka/1324, supported by unappealed orders of Hon. Kituku (PM) dated 1st March 2017 maintaining status quo. Interference with the subdivided parcels would change the nature of the case and cause loss not compensable in damages. Balance of convenience favoured status quo. However, cancellation of titles is a final relief requiring special circumstances and was said not to be grantable at interlocutory stage.

p. 3
02

Whether the suit is res judicata

Holding

Res judicata cannot be raised in a Replying Affidavit as it requires ascertainment of facts; objection failed

Reasoning

Relying on George Kama Kimani v County Government of Trans-Nzoia, the court held that res judicata is best raised by Notice of Motion with pleadings annexed, since determining whether issues were directly and substantially in issue in a previous suit requires probing of evidence, which a replying affidavit cannot accommodate.

p. 3
03

Whether to stay proceedings in Succession Cause No. 186 of 2013

Holding

Stay of succession proceedings would ordinarily be prudent given the prima facie case, but the prayer was not among those ultimately allowed

Reasoning

Citing Global Tours & Travels Limited, the court held that stay of proceedings is a judicial discretion exercised in the interest of justice. Noting the succession cause was undetermined and touched the subject property, and having found a prima facie case, the court considered it prudent to stay the succession cause so distribution could follow determination of the suit. Yet the final orders allowed only prayers 3 and 4.

p. 3

Legal principles established

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  • Res judicata cannot properly be raised in a Replying Affidavit as it requires ascertainment of facts; it is best raised by Notice of Motion with pleadings annexed
  • In an interlocutory application the court makes no conclusive or definitive findings of fact or law on contradictory affidavit evidence
  • Prayers for cancellation of titles are granted at interlocutory stage only in special and exceptional circumstances

Court orders

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  1. 1.The Notice of Motion dated 10th September 2020 is allowed in terms of prayers No. 3 and 4 only
  2. 2.The other prayers to await the calling of evidence at the main trial
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSections 1A, 1B, 3A and 4
  • Civil Procedure ActSection 7
  • Land Registration ActSection 71

Cases cited (9)

  • Airland Tours and Travel Ltd vs National Industrial Credit Bank
    Milimani HCCC No.1234 of 2003
  • Giella vs Cassman Brown Co Ltd
    (1973) EA 358
  • Kibutiri vs Kenya Shell
    Nairobi High Court Civil Case No.3398 of 1980 (1981) KLR
  • E.A Industries vs Trufoods
    (1972) EA 420
  • Mrao Ltd vs First American Bank of Kenya Ltd & Others
    (2003) KLR
  • Olympic Sports House Ltd vs School Equipment Centre Ltd
    (2012) eKLR
  • Virginia Edith Wambui vs Joash Ochieng Ougo
    Civil Appeal No.3 of 1987 (1987) eKLR
  • Global Tours & Travels Limited
    Nairobi HC Winding Up Cause No. 43 of 2000
  • George Kama Kimani & 4 Others vs County Government of Trans-Nzoia
Jurisdiction invoked
Order 40 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 4 of the Civil Procedure Act; Section 71 of the Land Registration Act

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, "George Igogo Munyinyi v Priscilla Njoki Igogo & 9 others [2021] KEELC 2274 (KLR)", Case Analysis (2021). Notice of Motion dated 10th September 2020 (suit particulars not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2274/eng@2021-07-29

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