Joseph Kariuki Njuguna & another v Mwanzo Development Company Limited [2021] KEELC 3969 (KLR)
The bottom line
#Kenya's Environment and Land Court in Machakos corrected its own mixed-up land orders, confirming only a temporary injunction applies before a full trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the Ruling of 23rd November, 2017 contained an error apparent on the face of the record
Yes - by allowing the entire interlocutory application 'as prayed', the court's orders erroneously included prayers for a permanent injunction and execution of transfer documents by the Deputy Registrar, causing confusion at the Land Registry.
The application before the court in 2017 was for a temporary injunction pending the hearing of the suit, not final orders. The ruling found only a prima facie case, a test applicable to temporary injunctions. Extraction of all prayers, including final ones, was erroneous and confusing and prevented the Land Registrar from implementing the orders. Such a mixed-up order is an error apparent on the face of the record justifying review under Order 45.
What orders should issue in place of the erroneous ones
The orders were varied so that the Application dated 6th March, 2017 is allowed only in terms of a temporary injunction restraining the Defendant from interfering with the suit properties pending the hearing and determination of the suit, with costs of that application to the Plaintiffs.
Since the prayer the court actually allowed was in the nature of a temporary injunction, and the permanent injunction and Deputy Registrar execution orders could only follow viva voce evidence, the proper course on review was to restrict the orders to an interlocutory restraining injunction preserving the suit properties until trial.
Legal principles established
#- Final orders of injunction, including an order for the Deputy Registrar to execute transfer documents, can only be granted after viva voce evidence has been tendered, save in exceptional cases at the interlocutory stage under a different standard.
- An order allowing an application 'as prayed' without specifying the orders issued, thereby capturing inconsistent prayers, constitutes an error apparent on the face of the record reviewable under Order 45.
Court orders
#- 1.The court reviewed its Ruling of 23rd November, 2017 and the subsequent orders so that the Application dated 6th March, 2017 is allowed only in terms of a temporary injunction
- 2.The Defendant is restrained by way of an injunction either by itself, its servants, its agents and/or whomsoever acting under its instructions from disposing, selling, offering for sale, sub-dividing, charging, transferring or in any way interfering with suit property Title No. Mavoko Town Block 2/2506 and Mavoko Town Block 2/2537 (Plot Nos. 378 & 379 JKIA PHASE 5) pending the hearing and determination of the suit
- 3.The costs of the Application dated 6th March, 2017 to be paid by the Defendant
- Jurisdiction invoked
- Sections 1A, 1B & 3A of the Civil Procedure Act; Order 45 and 51 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kariuki Njuguna & another v Mwanzo Development Company Limited [2021] KEELC 3969 (KLR)", Case Analysis (2021). ELC Case of 2017 (Plaint dated 6th March, 2017; Notice of Motion dated 26th August, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3969/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.