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ELCAllowedELC Case of Machakos (injunction application dated 27th March, 2020)· [2021] KEELC 3413 (KLR)

Machakos Golf Club Limited v Machakos Teachers College & another [2021] KEELC 3413 (KLR)

Environment and Land Court
30 April 2021
OAO. A. Angote
3,388 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court protected a registered landowner from developers, ruling that a title deed beats an allotment letter and that res judicata must be properly proven.

What this practically means

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Executive summary

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The Plaintiff, Machakos Club Limited, moved the Court by Notice of Motion dated 27th March 2020 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, seeking an interlocutory injunction restraining the Defendants from entering, trespassing on, fencing or occupying land known as Machakos Town Block 1/25 measuring 42.0888 Hectares. The Plaintiff, through its Secretary's affidavit, asserted registered ownership and peaceful occupation, alleging trespass and fencing by the Defendants' agents. The Defendants opposed, contending that the disputed parcel (parcel No. 26, LR No. 909/717, measuring 10.9 Ha) had been allotted to the 1st Defendant, that the dispute was a boundary question best resolved by survey, and that the suit was time-barred and res judicata Nairobi HCCC No. 507 of 1971 involving the same parties. The court framed two issues: res judicata and the injunction. On res judicata, applying Section 7 of the Civil Procedure Act and the conjunctive elements in the Benjoh and Maina Kiai decisions, the court found no evidence that the 1971 suit was heard and determined, so the doctrine was not established. On the injunction, applying Giella, Mrao and Nguruman, the court found the Plaintiff remained the registered proprietor of the suit property; there was no evidence of subdivision with the Plaintiff's concurrence, and the 1st Defendant's allotment letter for parcel 26 was not exhibited. A prima facie case was established and the injunction was granted pending determination of the suit, with each party bearing its own costs.

Key legal issues

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01

Whether the suit is res judicata Nairobi HCCC No. 507 of 1971

Holding

No; res judicata was not established because there was no evidence that the 1971 suit was heard and determined on merit.

Reasoning

Section 7 CPC requires that the matter in issue in a former suit between the same parties have been heard and finally decided. The Defendants attached only the Plaint in the 1971 suit, and did not show what became of it. The court held the elements conjunctive and not proved.

p. 3
02

Whether an interlocutory injunction should issue in favour of the Plaintiff

Holding

Yes; the Plaintiff established a prima facie case with chances of success, justifying the injunction.

Reasoning

Applying Giella and Nguruman, the court found the Plaintiff still registered proprietor of Machakos Town Block 1/25 measuring 42.0888 Ha; there was no evidence the parcel was subdivided to create parcel 26 with the Plaintiff's concurrence, and an allotment letter could not issue over already-titled land.

p. 4

Legal principles established

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  • The elements of res judicata are conjunctive and the party pleading it must prove the former suit was heard and finally decided.
  • A letter of allotment cannot be issued in respect of land already allocated and for which a title deed has been issued to another party.

Court orders

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  1. 1.Pending the hearing and determination of the suit, an order of injunction restraining the Defendants/Respondents jointly and severally, their agents, servants and/or any other person claiming through them from entering into, trespassing, occupying, continuing fencing, building or engaging in any acts of possession, usage and wastage of all that parcel of land known as Machakos Town Block 1/25 measuring 42.0888 Hectares.
  2. 2.Each party to bear its own costs.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure Rules 2010Order 40 Rules 1, 2, 4 and 8; Order 51
  • Civil Procedure ActSection 7
  • Land Registration Act 2012Section 26(1)
  • Registration of Land Act (repealed)Section 27(a)

Cases cited (11)

  • Kenya Commercial Bank Limited vs. Benjoh Amalgamated Limited & Another
    (2017) eKLR
  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 others
    (2007) eKLR
  • Mburu Kinyua vs. Gachini Tutu
    (1978) KLR 69
  • William Koross vs. Hezekiah Kiptoo Komen & 4 others
    (2015) eKLR
  • Lal Chand vs. Radha Kisham
    AIR 1977 SC 789
  • Benjoh Amalgamated Limited & Another vs. Kenya Commercial Bank Limited
    (2014) eKLR
  • American Cyanamid Co. vs. Ethicon Limited
    (1975) A AER 504
  • Giella vs. Cassman Brown
    (1973) EA 358
  • Mrao vs. First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Kenya Commercial Finance Co. Ltd V. Afraha Education Society
    [2001] Vol. 1 EA 86
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act; Order 40 Rules 1, 2, 4 and 8 and Order 51 of the Civil Procedure Rules 2010

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, "Machakos Golf Club Limited v Machakos Teachers College & another [2021] KEELC 3413 (KLR)", Case Analysis (2021). ELC Case of Machakos (injunction application dated 27th March, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3413/eng@2021-04-30

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