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ELCDismissedELC Suit (Milimani) - Notice of Motion dated 9th November 2020· [2021] KEELC 4464 (KLR)

JC & 8 others v National Social Security Fund (NSSF) & 2 others [2021] KEELC 4464 (KLR)

Environment and Land Court
28 January 2021
1,308 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling on a notice of motion dated 9th November 2020 by the plaintiff/applicant in a land dispute over LR 97/0720/554, brought under Articles 31, 40, 53 and 159 of the Constitution, Orders 31, 40 and 51 of the Civil Procedure Rules 2010 and sections 1A, 1B and 63 of the Civil Procedure Act. The motion sought interim injunctions restraining the defendants from processing or issuing a title deed, lease certificate or any interest over the suit property in favour of the 2nd defendant, and from evicting, demolishing or otherwise interfering with the plaintiffs' occupation, with an alternative prayer for preservation of the status quo as at 9th November 2020. The application was opposed by replying affidavits from all three defendants, and the 2nd defendant raised a preliminary objection that the suit was res judicata in view of Milimani ELC No. 939 of 2016, Joseph Cheptoo vs NSSF, David Gachonde and Rebecca Jepchumba Boit. The court framed three issues: the preliminary objection, the injunction threshold, and costs. On the preliminary objection, the court held that res judicata under section 7 of the Civil Procedure Act requires a former suit heard and finally decided; ELC 939 of 2016 was dismissed for want of prosecution, so the objection was dismissed. On the merits, applying Giella vs Cassman Brown and Mrao Ltd, the court found the 2nd defendant had lawfully and procedurally acquired the suit property and was its registered owner, the 3rd defendant having failed to pay and disclaiming any trust for the plaintiffs. The plaintiffs failed to establish a prima facie case with a probability of success or irreparable loss not compensable by damages, and were found not to have made full disclosure of relevant facts. The motion was dismissed with costs abiding the outcome of the main suit.

Key legal issues

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01

Whether the suit is res judicata in view of Milimani ELC No. 939 of 2016

Holding

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.

Reasoning

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.

p. 2
02

Whether the plaintiffs established a prima facie case with a probability of success

Holding

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.

Reasoning

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.

p. 3
03

Whether the plaintiffs demonstrated irreparable loss not compensable by damages

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The notice of motion dated 9th November 2020 is dismissed
  2. 2.Costs to abide the outcome of the main suit

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 31, 40, 53, 159
  • Civil Procedure Rules 2010Order 31 rule 1; Order 40 rules 1, 2, 3, 4 and 10; Order 51
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 63, 7

Cases cited (5)

  • Giella vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Ltd vs First American Bank of Kenya Limited & 2 Others
    [2003] KLR 125
  • Kenleb Cons Ltd vs New Gatitu Services Station Ltd & Another
    [1990] KLR 557
  • Oloo vs Barclays Bank of Kenya Ltd
    [2002] KLR 394
  • Joseph Cheptoo vs NSSF, David Gachonde and Rebecca Jepchumba Boit
    Milimani ELC No. 939 of 2016
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

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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, "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.