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ELCPartially AllowedNotice of Motion dated 25th September, 2020 (Environment and Land Court suit, Plaint dated 20th May, 2018)· [2022] KEELC 1280 (KLR)

Basil Criticos v AIC Makutano & 39 others [2022] KEELC 1280 (KLR)

Environment and Land Court
24 February 2022
LNL. L. Naikuni
5,883 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~24 min to read original · ~4 min brief

The bottom line

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A Mombasa court refused a landowner's injunction for lack of evidence, but allowed her to add the alleged encroacher as a defendant for full trial.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Naikuni J) determined an omnibus Notice of Motion dated 25th September, 2020 by the Plaintiff, the registered owner of Land Reference No. 10287/4, who sought leave to amend the Plaint and join Marion Atieno Moon as a Defendant, and a temporary injunction restraining her from dealing with the suit land on allegations of encroachment and construction. The Proposed Defendant opposed, denying any purchase from or dealings with the Plaintiff, complaining of a one-year delay in service, and asserting that no draft Amended Plaint or documentary evidence accompanied the application. The court framed four issues. On injunction, it applied the Giella v Cassman Brown principles sequentially, found that the Plaintiff had produced no empirical documentary evidence (searches, sale agreements, mutation forms, photographs) and, applying Sections 107 and 120 of the Evidence Act, held that no prima facie case was established; the injunction prayer was dismissed with costs. On joinder, the court invoked its inherent powers under Sections 3(1) and 13(1) of the Environment and Land Court Act, Sections 150 of the Land Act and 101 of the Land Registration Act, and Article 159 of the Constitution, suo motu allowing the joinder of the Proposed Defendant since joinder may occur at any stage and her presence was necessary for effectual trial. On amendment, applying Eastern Bakery v Castelino, Tildesley v Harper and St. Patrick's Hills School v Bank of Africa, leave to amend the Plaint to add her as the 40th Defendant was granted, pleadings not having closed. Directions on service, defences, mention and hearing dates were issued and costs were placed in the cause.

Key legal issues

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01

Prima facie case for temporary injunction

Holding

No prima facie case was established against the Proposed Defendant

Reasoning

The Plaintiff alleged that the Proposed Defendant had purchased parcels of and was constructing on the suit land, but adduced no documentary evidence - no official searches, title copies, sale agreements, mutation forms or photographs. Applying Sections 107 and 120 of the Evidence Act on the burden of proof, and the sequential Giella test as upheld in Kenya Horticultural Exporters and Nguruman, the court held the first limb failed, so the injunction prayer was dismissed.

p. 4
02

Joinder of the Proposed Defendant

Holding

Joinder allowed suo motu under the court's inherent powers despite the Plaintiff's evidentiary failure

Reasoning

Relying on Order 1 of the Civil Procedure Rules and the principles of natural justice, the court held that joinder is permitted at any stage where a party's presence is necessary to effectually settle all questions. Invoking Sections 3(1) and 13(1) of the Environment and Land Court Act, Section 150 of the Land Act, Section 101 of the Land Registration Act and Article 159, the court deemed it imperative to join her so that factual and evidentiary issues are resolved at full trial.

p. 5
03

Amendment of the Plaint

Holding

Leave to amend granted; suit still at hearing stage, no new cause of action introduced

Reasoning

Applying Eastern Bakery v Castelino, Tildesley v Harper and St. Patrick's Hills School v Bank of Africa, the court held amendments should be freely allowed before judgment where no uncompensable injustice results. Since pleadings had not closed and the amendment did not introduce a substantially different cause of action, offending no rule, leave was granted with corresponding leave to the Defendants to amend their defences.

p. 6

Legal principles established

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  • The conditions for an interlocutory injunction are prima facie case, irreparable injury not compensable by damages, and balance of convenience - applied sequentially
  • Joinder of parties may be effected at any stage of the proceedings where the party's presence is necessary to effectually determine the real matter in dispute
  • Amendments to pleadings sought before hearing should be freely allowed if they can be made without injustice to the other side, which can be compensated by costs

Court orders

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  1. 1.The prayer for temporary injunction against the Proposed Defendant dismissed with costs
  2. 2.Leave granted to join the Proposed Defendant into the suit within 14 days
  3. 3.Leave to amend the Plaint to include Marion Atieno Moon as the 40th Defendant by filing and serving the Amended Plaint within 14 days
  4. 4.Plaintiff to serve the Proposed Defendant with all pleadings within 3 days of filing the Amended Plaint; Proposed Defendant to file Defence and/or Counter-Claim within 14 days of service
  5. 5.All Defendants granted corresponding leave of 14 days upon service with the Amended Plaint to file and serve Amended Defences
  6. 6.Matter to be mentioned on 25th April, 2022 to confirm compliance, finalise pre-trial conference and take a hearing date within 90 days
  7. 7.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 100
  • Civil Procedure Rules, 2010Order 1 Rules 8 and 10(2); Order 2 Rule 6; Order 7 Rule 9; Order 8 Rules 1, 2, 3(1), 3(5) and 5(1); Order 40 Rules 1 and 2; Order 51 Rule 1; Orders 6, 7 and 11
  • Constitution of KenyaArticles 50(1) and (2), 159(1) and (2)(a)
  • Evidence ActCap 80, Sections 107 and 120
  • Environment and Land Court ActNo. 9 of 2011, Sections 3(1) and 13(1)
  • Land ActNo. 6 of 2012, Section 150
  • Land Registration ActNo. 3 of 2012, Section 101
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 2

Cases cited (14)

  • Giella –Versus- Cassman Brown
    (1973) E.A. 358
  • MRAO Limited –Versus- First American Bank Limited and 2 Others
    (2003) KLR 125
  • Kenya Horticultural Exporters Pg. 1977 Limited –Versus- Pape
    1986 KLR 705
  • Nguruman Limited –Versus- Jan Bonde Neilson & 2 Others
    2014 eKLR
  • Gerphas Alphonse Odhiambo –Versus- Felix Adiego
    (2006) eKLR
  • Pius Kichirchir Kogi –Versus Frank Kimeli Tenai
    (2018) eKLR
  • Kenya commercial Finance Co. Limited –Versus Afraha Education Society
    (2001) 1 E.A. 86
  • Hassan Huri –Vs- Abdulrazak Huri Ibrahim
    Court of Appeal (Mombasa) No. 8 of 2015
  • Ochieng and Other –Versus- First National Bank of Chicago
    Civil Appeal No. 147 of 1991
  • St. Patrick's Hill School Limited –Versus- Bank of Africa Limited
    (2018) eKLR
  • John Harun Mwau –Versus- Simeone Haysom & 2 Others, AG
    HCCC Civil Suit No. 115 of 2019 (2021) eKLR
  • Lucy Nangari Ngigi & 128 Others –Versus- National Bank of Kenya Limited & Another
    (2015) eKLR
  • Eastern Bakery –Versus- Castelino
    (1958) E.A 461 (U)
  • Tildesley –Versus- Harper
    (1878), 10 Ch. D. 296
Jurisdiction invoked
Sections 1A, 1B, 3A and 100 of the Civil Procedure Act Cap 21; Orders 1, 8, 40 and 51 of the Civil Procedure Rules, 2010; Sections 3(1) and 13(1) of the Environment and Land Court Act; Sections 150 of the Land Act and 101 of the Land Registration Act; Articles 50 and 159 of the Constitution

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, "Basil Criticos v AIC Makutano & 39 others [2022] KEELC 1280 (KLR)", Case Analysis (2022). Notice of Motion dated 25th September, 2020 (Environment and Land Court suit, Plaint dated 20th May, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1280/eng@2022-02-24

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