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ELCAllowedNot stated in the judgment (notice of motion dated 27th September 2019)· [2021] KEELC 4089 (KLR)

Kishushe Ranching Coop. Society Ltd v Newton Kifuso [2021] KEELC 4089 (KLR)

Environment and Land Court
2 March 2021
2,694 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered a person occupying private land without permission to vacate within 60 days, confirming that a registered title wins unless fraud is proven.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of LR 28984, moved under Order 36 Rule 1(b) of the Civil Procedure Rules for summary judgment for vacant possession against the defendant, who had entered and was constructing a residence on the land without permission. The plaintiff exhibited its title and a survey report and contended there was no defence and no triable issues on the possession claim. The defendant opposed through a preliminary objection that the suit was sub judice given ELC Petition No. 26 of 2019 and ELC 260 of 2015 (invoking Section 6 of the Civil Procedure Act and Section 19(2) of the Environment and Land Court Act), and asserted that the plaintiff's title fraudulently encroached on the Kishushe Adjudication Section, relying on pending litigation, a task force and an NLC recommendation for revocation. The court applied the settled principles in Gupta v Continental Builders and Continental Butchery v Nthiwa: where no bona fide triable issue is raised, or the defence is a sham, summary judgment should follow. It held that the sub judice objection failed because the defendant was not a party to either cited suit, that summary judgment does not offend Section 19(2), and that the plaintiff's certificate of title under Section 26 of the Land Registration Act stood unimpeached on the material before it. The motion was allowed: the defendant was given 60 days to vacate, failing which eviction orders would issue, with costs to the plaintiff.

Key legal issues

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01

Sub judice / Section 6 Civil Procedure Act objection

Holding

The objection fails because the defendant is not a party to the pending suits (ELC 260 of 2015 and ELC Petition 26 of 2019); Section 6 requires the same parties.

Reasoning

The court accepted that Section 6 bars a court from proceeding where the issues are substantially the same as in a prior suit. However, on the material on record the defendant is not a party in either cited suit, so the statutory condition of identity of parties is not met and the principle of sub judice is inapplicable.

p. 3
02

Effect of Section 19(2) of the Environment and Land Court Act on summary judgment

Holding

An application for summary judgment does not curtail the natural-justice protections of Section 19(2); it merely enables the court to test whether issues warrant a full trial.

Reasoning

The court agreed with the plaintiff that summary judgment procedure complements Sections 1A and 1B of the Civil Procedure Act by promoting the just, expeditious and proportionate disposal of cases, and does not shut a defendant out of the protections envisaged by Section 19(2) of the Environment and Land Court Act.

p. 3
03

Whether triable issues exist to warrant leave to defend

Holding

No bona fide triable issues were raised; the plaintiff's title was exhibited and the defendant did not dispute occupation without permission, so summary judgment was merited.

Reasoning

The plaintiff produced a certificate of title as registered proprietor, which under Section 26 of the Land Registration Act is prima facie conclusive. The defendant's assertions of fraud, adjudication-section encroachment and pending litigation were not shown to raise factual matters for trial, and the court found no discernible defence to the possession claim.

p. 3

Legal principles established

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  • Where no bona fide triable issue is raised, or the defence is a sham, the court should enter summary judgment to avoid delay; where a triable issue is raised the defendant gets unconditional leave to defend.
  • The sub judice rule under Section 6 of the Civil Procedure Act applies only where there is a prior suit between the same parties.
  • A certificate of title under Section 26 of the Land Registration Act is conclusive evidence of proprietorship save for fraud, misrepresentation or illegal, unprocedural or corrupt acquisition.

Court orders

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  1. 1.The notice of motion dated 27th September 2019 is allowed as prayed
  2. 2.The defendant shall within 60 days vacate and/or deliver up possession of that portion of LR 28984 in his occupation, in default the plaintiff may evict and eviction orders to issue
  3. 3.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 36 Rule 1(b)
  • Civil Procedure ActSections 1A, 1B, 3A, 6
  • Environment and Land Court ActSection 19(2)
  • Land Registration ActSection 26

Cases cited (17)

  • Continental Butchery Limited –v- Nthiwa
    (1978) eKLR
  • Gichiem Construction Company –v- Amalgamated Trades & Services
  • Zola –v- Ralli Bros
    (1969) EA 691
  • Jacobs –v- Booths Distillery Company
    85 LT Reports at 262
  • Sadolin Paints Ltd –v- Wali Mohamed & Co.
    (1972) EA 395
  • Mukisa Biscuit Manufacturing Co. Ltd –v- West End Distributors Ltd
    (1969) EA 696
  • Wavinya Ndeti –v- Independent Electoral & Boundaries Commission (IEBC) & 4 Others
    (2014) eKLR
  • Muturi Investments Ltd –v- NBK
    (2006) eKLR
  • Barclays Bank of Kenya Ltd –v- Elizabeth Agidza & 2 Others
    (2012) eKLR
  • Thiba Min. Hydro Co. Ltd –v- Josphat Karu Ndwiga
    (2013) eKLR
  • Cecilio Murango Mwenda & 6 Others –v- Isaac Kimathi Ikunga
    (2019) eKLR
  • Shah –v- Padamshi
    (1984) KLR 531
  • Ahmednassir Abdikadir & Company Advocates –v- National Bank of Kenya Limited
    (2007) eKLR
  • Isaac Awoudno –v- Surgipharm Limited & Another
    (2011) eKLR
  • Lalji t/a Vakkep Building Contractors –v- Carousel Limited
    (1989) eKLR
  • Ternic Enterprises Limited –v- Waterfront Outlets Limited
    (2018) eKLR
  • Gupta –v- Continental Builders Ltd
    (1978) KLR 83
Jurisdiction invoked
Order 36 Rule 1(b) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Kishushe Ranching Coop. Society Ltd v Newton Kifuso [2021] KEELC 4089 (KLR)", Case Analysis (2021). Not stated in the judgment (notice of motion dated 27th September 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4089/eng@2021-03-02

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