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ELCAllowedKitale ELC No. 4 of 2021· [2022] KEELC 6 (KLR)

HOPF v DIRECTOR OF SURVEY & 2 others; SAKAJA & 2 others (Interested Parties) (Environment & Land Case 4 of 2021) [2022] KEELC 6 (KLR)

Environment and Land Court
4 May 2022
5,220 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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The Kitale Environment and Land Court allowed neighbouring farmers to join a land dispute and stopped construction on a public road reserve pending trial.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (Fred Nyagaka J) on an application dated 3 February 2022 by intended interested parties led by John Sakaja seeking (i) joinder as interested parties in a suit concerning construction on a road reserve on LR.2073/25 and (ii) a temporary injunction restraining the Plaintiff from continuing that construction. The Applicants are farmers and registered proprietors of neighbouring parcels (LR. 2073/15, 2073/16 and 2073/15/9) who contend that an access road, set aside by a Government Surveyor in 1952, has been encroached upon and closed by the Plaintiff, blocking access to the Kitale-Webuye road for over fifty residents. The Respondent denied the existence of the road on his parcel, asserting he inherited the land from his father by will and registered it in 2020, and argued the Applicants lacked a stake and that the injunction prayer was incompetent for being brought before formal joinder. The Court framed three issues: joinder, injunction, and costs. Relying on Muruatetu, Trusted Society, and Skov Estate, it found the Applicants had a direct, identifiable stake and non-replicative submissions, and allowed joinder. The Court overcame the procedural objection under Article 159(2)(d), holding that rules of procedure are handmaids of justice, and found a prima facie case, irreparable harm, and balance of convenience favouring the Applicants. It allowed the application, issued the temporary injunction, awarded costs to the Applicants, and gave directions for filing of pleadings and a trial bundle, with mention on 2 June 2022.

Key legal issues

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01

Joinder of interested parties

Holding

Application for joinder is merited; the Applicants demonstrated a direct identifiable stake and proximate interest in the proceedings, satisfying the Muruatetu threshold

Reasoning

The Court applied the three-pronged test in Muruatetu as restated in Trusted Society of Human Rights Alliance and Skov Estate: identifiable personal interest, prejudice on non-joinder, and non-replicative submissions. The Applicants' potential blockage from the Kitale-Webuye road and the fact that they were already party to related suits touching the same subject established a direct link. Their documents contained diverse and pertinent facts not replicative of other parties. The suit was still pending and alive at the interlocutory stage.

p. 6
02

Procedural irregularity in seeking injunction before formal joinder

Holding

The Court exercised discretion under Article 159(2)(d) and Sections 3A and 63(e) of the Civil Procedure Act to treat the prayer as competent given urgency and risk of waste to the subject matter

Reasoning

While the ideal procedure is leave first, then application for reliefs, the Court found that urgency and danger of wasting the subject matter justified an exception. The Respondent had allegedly commenced blocking a road used by many people and had resisted the road's existence in prior proceedings. The Court held that rules of procedure are handmaids and not masters of justice, and having granted joinder, equity would treat the intended interested parties as proper participants.

p. 7
03

Prima facie case for temporary injunction

Holding

Applicants made out a prima facie case with probability of success

Reasoning

The Applicants were registered proprietors of neighbouring parcels; the road allegedly encroached was a public road said to have existed over 40 years; and the Respondent indirectly admitted inconsistency in survey maps by arguing errors should have been corrected within 12 months. The issues closely mirrored those in related suits. The balance of convenience favoured preserving the subject matter pending full hearing.

p. 8
04

Irreparable harm and balance of convenience

Holding

Applicants demonstrated irreparable harm not adequately compensable by damages; balance of convenience favours granting injunction

Reasoning

Construction had commenced and building materials had been offloaded onto the disputed portion. This supported irreparable harm. The Court also found balance of convenience shifted in favour of granting the injunction to allow the matter to be determined on the merits, upholding the audi alteram partem doctrine.

p. 8

Legal principles established

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  • Before a party is enjoined in a matter, the proceedings must be alive and pending before the Court
  • Failure to cite the correct provisions in an application is not fatal and may be cured under Article 159(2)(d) of the Constitution
  • The three conditions for grant of a temporary injunction are drawn from Giella v Cassman Brown: prima facie case, irreparable harm, and balance of convenience
  • Equity will treat as done that which ought to be done; once leave to be enjoined is granted, filing of papers is a mere formality

Court orders

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  1. 1.The intended interested parties/Applicants be enjoined in the suit as interested parties
  2. 2.A temporary injunction is issued against the Plaintiff/Respondent by himself, agents, servants and or assigns from continuing with the intended construction on the road reserve area meant for excision to expand the existing access road on LR.2073/25 until hearing and determination of the suit
  3. 3.Applicants granted costs of the instant application
  4. 4.Applicants to file and serve a Notice of Appointment as Interested Party within five (5) days and their pleadings within fifteen (15) days of the order
  5. 5.All parties have leave to file amended pleadings, lists of witnesses with witness statements and lists of documents with copies
  6. 6.Parties to ensure all documents are in an indexed, paginated, cross-referenced trial bundle to be exchanged before the mention date
  7. 7.Mention on 02/06/2022 to confirm compliance

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A, 63E
  • Civil Procedure Rules, 2010Order 1 Rule 10, Order 40 Rule 1, Order 51 Rule 1
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rules 2 and 7

Cases cited (12)

  • Skov Estate Limited & 5 others v. Agricultural Development Corporation and another
    [2015] eKLR
  • Trusted Society of Human Rights Alliance v. Mumo Matemo & 5 others
    [2015] eKLR
  • Francis Karioki Muruatetu & another v Republic & 5 others Petition No. 15 as consolidated with No 16 of 2013
    [2016] eKLR
  • Giella v Cassman Brown
    (1973) EA 358
  • Florence Nafula Ayodi & 5 others v Jonathan Ayodi Ligure v John Tabalya Mukite & another; Benson Girenge Kidiavai & 67 others (applicants/intended interested parties)
    [2021] eKLR
  • Elizabeth Nabangala Wekesa v Erick Omwamba & 3 Others; Esther Momanyi Omwamba (applicant)
    [2021] eKLR
  • Leonard Kimeu Mwanthi v Rukaria M'twerandu M'iringu; Nathaniel Kithinji Ikiugu & 4 others (Intended Interested Parties)
    [2021] eKLR
  • David Kiptugen v Commissioner of Lands, Nairobi & 4 others
    [2016] eKLR
  • Communications Commission of Kenya & 4 Others v Royal Media Services Limited
  • Judicial Service Commission -vs- Speaker of the National Assembly & Another
    [2013] eKLR
  • Mrao Limited -vs- First American Bank of Kenya Limited & 2 Others
    [2003] eKLR
  • Nguruman Limited -vs- Jan Bonde Nielsen & 2 others
    [2014] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act; application brought under Sections 3, 3A and 63E of the Civil Procedure Act and Order 51 Rule 1 and Order 40 Rule 1 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "HOPF v DIRECTOR OF SURVEY & 2 others; SAKAJA & 2 others (Interested Parties) (Environment & Land Case 4 of 2021) [2022] KEELC 6 (KLR)", Case Analysis (2022). Kitale ELC No. 4 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/6/eng@2022-05-04

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