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ELCPartially AllowedEnvironment & Land Case E089 of 2021· [2022] KEELC 13490 (KLR)

Chege v E3 Energy Kenya Limited & 2 others

Environment and Land Court
17 October 2022
BEB M Eboso
1,693 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiff, registered proprietor of LR No 13537/137 (approx. 0.2132 ha) in Juja, Kiambu County, sued E3 Energy Kenya Limited, Anne Njeri Mbote and Kyma Energies Limited alleging trespass and encroachment, and sought a permanent injunction, declarations of trespass and nullity of any agreements, eviction, damages and mesne profits. Two applications fell for determination: the plaintiff's amended notice of motion dated February 16, 2022 seeking interlocutory injunctive relief, and the 1st defendant's notice of motion dated April 28, 2022 seeking to be struck out from the suit. The 1st defendant, a petroleum products supplier, deponed that it had no ownership interest in or occupation of the suit property; its only link was a dealership agreement with Kyma Energies Limited, whose directors are the plaintiff's wife and son. The court found the real dispute lay between the plaintiff and his wife (the 2nd defendant), who was in possession, and that the dispute could be effectually adjudicated without the 1st defendant; it struck out the 1st defendant with no order as to its costs. On the injunction application, the court noted the suit property is one of thirteen properties in a pending matrimonial property suit, Nairobi HCCC No 64 of 2013 (OS), and held that parallel adjudication would be improper. Applying Giella v Cassman Brown and the Lillian 'S' downing-tools principle, the court declined to adjudicate and directed a mention for parties to show cause why the suit should not be struck out for want of jurisdiction.

Key legal issues

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01

Whether the 1st defendant should be struck out as an unnecessary party

Holding

Struck out; the real dispute is between the plaintiff and the 2nd defendant (his wife), and the plaintiff did not show the 1st defendant infringed his rights or that the dispute cannot be effectually adjudicated without the 1st defendant

Reasoning

The evidence showed the plaintiff's wife and son were in possession and carrying on business on the suit property under a dealership agreement with the 1st defendant. The 1st defendant claimed no ownership interest or occupation. The underlying dispute was matrimonial between husband and wife, capable of complete determination without the 1st defendant, so its joinder served no purpose.

02

Whether interlocutory injunctive relief should issue

Holding

Refused; the court declined jurisdiction because the same dispute over the suit property is pending before the High Court as a matrimonial property suit

Reasoning

Applying Giella v Cassman Brown, the court noted the property is registered in the plaintiff's name but possessed by the 2nd defendant, and is one of thirteen properties in Nairobi HCCC No 64 of 2013 (OS). Parallel adjudication of the same dispute would be improper; the matrimonial property court is the proper forum, so the court 'downs its tools' per Owners of Motor Vessel Lillian 'S'.

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Legal principles established

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  • Where a dispute over land is already the subject of a matrimonial property suit in the High Court, the ELC should decline to adjudicate the same dispute in parallel
  • A party with no interest in the suit property and not in occupation of it is not a necessary party to a trespass suit

Court orders

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  1. 1.Allowed the 1st defendant's plea in terms of prayer 1 of the chamber summons dated April 28, 2022, striking out the 1st defendant from the suit
  2. 2.No order as to the 1st defendant's costs of the suit
  3. 3.Court declined to grant interlocutory injunctive relief, holding that the dispute should be adjudicated by the matrimonial property court in Nairobi HCCC No 64 of 2013 (OS)
  4. 4.Mention date to be given for parties to show cause why the suit should not be struck out for want of jurisdiction

Authorities

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Cases cited (2)

  • Giella v Cassman Brown & Co Ltd
    [1973] EA 358

    Criteria for grant of interlocutory injunctions: prima facie case, irreparable damage, balance of convenience

  • Owners of Motor Vessel Lillian "S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR

    Principle that a court without jurisdiction must down its tools

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) framework); court ultimately declines jurisdiction in favour of the matrimonial property court

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, "Chege v E3 Energy Kenya Limited & 2 others", Case Analysis (2022). Environment & Land Case E089 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13490/eng@2022-10-17

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