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ELCPartially AllowedNot stated in the judgment (Milimani, Environment and Land Court)· [2021] KEELC 4046 (KLR)

Simandi Investments Limited v Rosaline Njeri Macharia [2021] KEELC 4046 (KLR)

Environment and Land Court
4 March 2021
6,093 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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A Nairobi court froze half of compulsory-acquisition compensation for contested land until ownership is decided at trial.

What this practically means

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Executive summary

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The plaintiff, Mwanjambori Investments Limited, moved the Environment and Land Court by Notice of Motion dated 11th December 2020 seeking joinder of the National Land Commission (NLC) and Kenya National Highways Authority (KENHA) as interested parties and an injunction restraining the release of compensation for the compulsory acquisition of L.R No. 209/11293/1 for the Nairobi Expressway Road Project, pending determination of its ownership dispute with the defendant, Rosaline Njeri Macharia. The plaintiff claimed to own two resultant subdivisions of the suit property, while the defendant claimed to be the registered owner since 1995, having purchased it from the Kenya National Chamber of Commerce and Industry, and operated the City Cabanas hotel on it. Each party alleged the other's title was fraudulent. The defendant opposed the application on jurisdictional grounds, contending that compensation disputes lay with the Land Acquisition Compensation Tribunal under section 29(2) of the (repealed) Land Acquisition Act. The court held that NLC and KENHA, against whom substantive relief was sought, should be joined as 2nd and 3rd defendants under Order 1 rules 3 and 10(2) of the Civil Procedure Rules rather than as interested parties, with leave to amend the pleadings. It found that neither party's title could be validated at the interlocutory stage, so no prima facie case with probability of success was established. However, exercising its inherent jurisdiction under section 3A of the Civil Procedure Act, the court preserved the subject matter by ordering NLC and KENHA to withhold one-half of the total compensation pending trial, since payment would destroy the substratum of the suit. The jurisdictional objection failed because the dispute concerned title, not compensation. Costs were in the cause.

Key legal issues

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01

Joinder of NLC and KENHA as defendants and amendment of pleadings

Holding

The applicant met the threshold in Order 1 rule 10(2) of the Civil Procedure Rules; the joinder was necessary to enable the court to adjudicate on all questions, and the joinder should be as defendants

Reasoning

The court held that parties may be joined as defendants under Order 1 rule 3 or added under Order 1 rule 10(2) where their presence is necessary to effectually adjudicate. The applicant demonstrated that NLC intended to compulsorily acquire the suit property, identified the defendant as owner entitled to compensation, and that ownership was disputed. Since the applicant sought substantive relief against NLC and KENHA, they should be defendants, with leave to amend the plaint. No prejudice to the defendant was shown.

p. 4
02

Whether a prima facie case with a probability of success was established

Holding

No prima facie case was established; both parties hold competing titles and the authenticity of neither could be determined at the interlocutory stage

Reasoning

Both parties anchored their claims on titles and each alleged the other's title was fraudulent. Following Nairobi House Ltd v Lennah Catherine Koinange and Agip (K) Ltd, the court declined to delve into substantive issues or pronounce on which title was genuine, holding that this must await the full trial with oral evidence and cross-examination.

p. 5
03

Preservation of the subject matter pending trial

Holding

The court exercised its inherent jurisdiction under section 3A of the Civil Procedure Act to order withholding of half the compensation payable

Reasoning

It was common ground that acquisition and compensation had commenced and that if compensation was paid out, the substratum of the suit would be lost. Since NLC could not be prevented from acquiring the land for a public purpose, justice demanded that compensation be withheld. However, because the defendant's compensation covered both land and her hotel business, the court limited the withholding to half the total compensation to alleviate possible suffering by the defendant.

p. 5
04

Jurisdiction - the Land Acquisition Compensation Tribunal

Holding

The objection failed; the dispute before the court was over ownership of the land, not compensation, and the tribunal has no jurisdiction over title disputes

Reasoning

The defendant argued that disputes over interests in land subject to compulsory acquisition lay with the tribunal under section 29(2) of the (repealed) Land Acquisition Act. The court doubted the tribunal's continued existence after repeal, held the present dispute concerned title rather than compensation, and noted the suit was already pending before NLC expressed its intention to acquire the property.

p. 6

Legal principles established

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  • Where a party seeks substantive relief against a proposed party, that party should be joined as a defendant rather than as an interested party
  • A court may exercise its inherent jurisdiction to preserve the subject matter of a suit even where a prima facie case has not been established for an injunction
  • The Land Acquisition Compensation Tribunal has no jurisdiction to determine a dispute over title to land
  • In an interlocutory injunction application the court should not make conclusive findings on substantive issues or the authenticity of competing titles

Court orders

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  1. 1.National Land Commission and Kenya National Highways Authority joined in the suit as 2nd and 3rd defendants respectively
  2. 2.The plaintiff to further amend its plaint within 7 days to effect the joinder
  3. 3.The new parties to be served with the further amended plaint together with summons to enter appearance within 14 days
  4. 4.The defendant, Rosaline Njeri Macharia, at liberty to amend her statement of defence within 14 days of service of the further amended plaint
  5. 5.Pending the hearing and final determination of the suit or further orders, the National Land Commission and Kenya National Highways Authority to withhold payment of one-half (1/2) of the total compensation payable in respect of the compulsory acquisition of L.R No. 209/11293/1 or any part thereof
  6. 6.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 3
  • Civil Procedure RulesOrder 1 rule 10(2) and (4)
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSections 1A & 1B
  • Constitution of KenyaArticle 159
  • Land Acquisition Act, Chapter 295 Laws of Kenya (now repealed)Section 29(2)

Cases cited (11)

  • Ougo & another v Otieno
    [1987] KLR 364
  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Giella v Cassman Brown & Company Limited
    [1973] E.A 358
  • Nairobi House Ltd. v Lennah Catherine Koinange
    [2019] eKLR
  • Mrao Ltd. v American Bank of Kenya Ltd & 2 others
    [2003] KLR
  • Nubian Rights Forum v Nubian Rights Forum Trustees of Kibra Community Land Trust (Interested Party)
    [2019] eKLR
  • Central Kenya Ltd. v Trust Bank Limited & 4 others
    Civil Appeal No. 222 of 1998
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Agip (K) Ltd. v Maheshchandra Himatlal Vora & others
    Civil Appeal No. 213 of 1999
  • Narendra Chaganlal Solanki v Neepu Auto Spares Ltd
    Kisumu High Court, Civil Case No. 90 of 2003
  • Kenya Power & Lighting Company Limited v Benzene Holdings Limited t/a Wyco Paints
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title to land; inherent jurisdiction under section 3A of the Civil Procedure Act and Articles 159 and 162 of the Constitution invoked

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, "Simandi Investments Limited v Rosaline Njeri Macharia [2021] KEELC 4046 (KLR)", Case Analysis (2021). Not stated in the judgment (Milimani, Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4046/eng@2021-03-04

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