JC & 8 others v National Social Security Fund (NSSF) & 2 others [2021] KEELC 4464 (KLR)
The bottom line
#The Environment and Land Court dismissed a landbuyer's bid to stop transfer of a Nairobi property because the paperwork showed the rival buyer was the lawful registered owner.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata in view of Milimani ELC No. 939 of 2016
The preliminary objection fails because the former suit was dismissed for want of prosecution without a hearing and final decision; section 7 of the Civil Procedure Act is not satisfied.
Section 7 of the Civil Procedure Act bars a court from trying a suit where the matter directly and substantially in issue was heard and finally decided in a former suit between the same parties or parties claiming under the same title. ELC 939 of 2016 was dismissed for want of prosecution on 18th September 2017, so the issues were never heard and no final decision was rendered. The essential ingredient of finality being absent, res judicata cannot arise and the preliminary objection is dismissed.
Whether the plaintiffs established a prima facie case with a probability of success
No prima facie case was established; the 2nd defendant appears to have lawfully acquired the suit property from the 1st defendant and is its registered owner.
The 1st plaintiff claimed beneficial ownership having purchased the property from the 1st defendant by instalments, producing some receipts. The 1st defendant denied any sale agreement or offer and asserted no privity of contract. The 2nd defendant produced receipts (DG1-DG5) and a letter from the 1st defendant confirming his ownership, after the 3rd defendant failed to pay for the property. On the documents, the court found the 2nd defendant acquired the property lawfully and procedurally, leaving the plaintiffs without a prima facie case.
Whether the plaintiffs demonstrated irreparable loss not compensable by damages
The plaintiffs failed to demonstrate irreparable loss that could not be compensated by an award of damages, guided by Oloo vs Barclays Bank of Kenya Ltd.
After failing on the first Giella limb, the court considered whether damages would be an inadequate remedy. The court found no demonstration of irreparable loss that could not be compensated by an award of damages. The court also invoked Kenleb Cons Ltd vs New Gatitu Services Station Ltd, noting that an applicant for an injunction must make a frank and full disclosure of all relevant facts and show a legal or equitable right requiring protection - a protection the court was not satisfied the plaintiffs deserved.
Legal principles established
#- In an application for interlocutory injunction the onus is on the applicant to satisfy the court that it should grant an injunction, on the principles in Giella vs Cassman Brown
- Res judicata under section 7 of the Civil Procedure Act requires that the matter in issue was heard and finally decided in a former suit; a dismissal for want of prosecution does not create res judicata
Court orders
#- 1.The notice of motion dated 9th November 2020 is dismissed
- 2.Costs to abide the outcome of the main suit
- Jurisdiction invoked
- Articles 31, 40, 53 and 159 of the Constitution of Kenya 2010; Order 31 rule 1, Order 40 rules 1, 2, 3, 4 and 10, Order 51 of the Civil Procedure Rules 2010; sections 1A, 1B and 63 of the Civil Procedure Act, Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JC & 8 others v National Social Security Fund (NSSF) & 2 others [2021] KEELC 4464 (KLR)", Case Analysis (2021). ELC Suit (Milimani) - Notice of Motion dated 9th November 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4464/eng@2021-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.