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ELCPartially AllowedNot stated in the judgment text provided· [2023] KEELC 424 (KLR)

Vulpine Investments Limited v Posstone Limited & another (Environment & Land Case E064 of 2021) [2023] KEELC 424 (KLR)

Environment and Land Court
7 February 2023
2,003 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The court was called upon to determine the plaintiff's notice of motion dated August 20, 2022 and the 2nd defendant's preliminary objection dated September 13, 2022. The plaintiff, Bhupinder Singh Dogra, owner of LR No 15050/16, sought a site visit in the company of the County Surveyor, Machakos, to establish the location of his parcel vis-à-vis LR No 12610/5, whether encroachment and quarrying were occurring on his land and by whom, and, based on the visit, a review of the court's ruling of April 26, 2022 dismissing an injunction application, with an injunction restraining the defendants from trespassing, mining or interfering with his possession. The defendants objected that the application was res judicata and swore, through George Munene, that they occupy LR No 12610/5 belonging to Kando Enterprises Limited, with a pending adverse possession suit (ELC No OS 11 of 2021). The court framed three issues. First, the preliminary objection failed: applying section 7 of the Civil Procedure Act and cited authorities, the application concerned site visit and review, issues not determined in the April 26, 2022 ruling, hence not res judicata. Second, invoking Order 18 rule 11, the court allowed the site visit, directing the plaintiff to arrange dates with the Deputy Registrar. Third, the court declined the review and injunction: under section 80 of the Civil Procedure Act and Order 45 rule 1(1), and per Muyodi v ICDC, the thresholds were unmet; the application was speculative, pegged on a site visit yet to occur, and the survey report came some four months after the ruling. The motion was partially successful - prayer (iii) only - with costs in the cause.

Key legal issues

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01

Whether the application is res judicata

Holding

The preliminary objection fails; the application deals with site visit and review, issues not determined in the April 26, 2022 ruling

Reasoning

Applying section 7 of the Civil Procedure Act and the elements of res judicata from Stephen Wanganga Njoroge v Stanley Ngugi Njoroge, the court found the matters now raised - site visit and review - were not directly and substantially in issue or finally decided in the earlier ruling dismissing the injunction application. The objection therefore lacked merit.

p. 3
02

Whether the court should conduct a site visit of the suit land

Holding

Yes - prayer (iii) allowed; plaintiff to organize dates with the Deputy Registrar

Reasoning

The parties disputed whether the defendants were on the plaintiff's land or on LR No 12610/5. Order 18 rule 11 of the Civil Procedure Rules empowers the court to inspect any property concerning which a question arises. Since the disputed fact of encroachment and quarrying could only be resolved by a site visit, the court allowed the prayer.

p. 4
03

Whether the court should review its ruling of April 26, 2022 and grant an injunction

Holding

No - the review application was premature and speculative

Reasoning

Section 80 of the Civil Procedure Act and Order 45 rule 1(1) permit review on discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, without unreasonable delay. The plaintiff sought review before the site visit, relying on its anticipated outcome; findings from the site visit could only be viva voce evidence. The threshold was not met.

p. 4

Legal principles established

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  • A preliminary objection on res judicata fails where the issues raised were not determined in the earlier ruling
  • The court may at any stage of a suit inspect any property concerning which a question arises
  • Findings from a site visit can only be presented as viva voce evidence and cannot found a review

Court orders

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  1. 1.The notice of preliminary objection dated September 13, 2022 is disallowed as unmerited
  2. 2.Prayer No (iii) of the notice of motion dated August 20, 2022 is allowed - the plaintiff to organize with the Deputy Registrar suitable dates and time for a site visit of the suit land
  3. 3.The prayer for review of the ruling and orders of April 26, 2022 and for an injunction is declined
  4. 4.Costs will be in the cause

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Civil Procedure Actsection 80
  • Civil Procedure RulesOrder 18 rule 11
  • Civil Procedure RulesOrder 45 rule 1(1)

Cases cited (4)

  • Stephen Wanganga Njoroge v Stanley Ngugi Njoroge & another
    (2017) eKLR
  • Uhuru Highway Development Ltd v Central Bank & others
    CA No 36 of 1996
  • Mukhisa Biscuit Manufacturing Co Ltd v West End Distributors Company Limited
    (1969) EA 696
  • Muyodi v Industrial and Commercial Development Corporation and another
    EALR (2006) EA 243
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; procedure governed by the Civil Procedure Act and Civil Procedure Rules

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, "Vulpine Investments Limited v Posstone Limited & another (Environment & Land Case E064 of 2021) [2023] KEELC 424 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/424/eng@2023-02-07

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