Ngumi Farm Limited v Kariuki & 5 others
The bottom line
#A Kenyan land court refused to block defendants from using disputed Murang'a property because the owner showed no evidence of an immediate threat like a sale.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd defendant's preliminary objection on limitation under section 7 of the Limitation of Actions Act was a pure point of law
It was not; ascertaining the 1993 registration date required perusal of exhibits, so the objection failed
The court applied the Mukisa Biscuit definition of a preliminary objection. The plaintiff's pleadings did not state when the 2nd defendant was registered as proprietor, so the court would have to ascertain facts from exhibits such as the 1993 sale agreement and title documents. An objection requiring factual ascertainment does not meet the criteria of a preliminary objection.
Whether the 5th defendant's preliminary objection that he was wrongly sued was merited
Not merited; determining whether Makuyu/Kimorori/1632 and Makuyu/Kimorori/Block 1/1632 are the same parcel requires factual ascertainment
The objection turned on whether two differently described parcels refer to one and the same land. That question cannot be resolved on the pleadings alone but requires ascertainment of facts, so it fails the Mukisa Biscuit test for a preliminary objection.
Whether a suit can stand against a deceased 2nd defendant
No; the deceased 2nd defendant was struck out of the suit
The court noted Francis Mbau Murigi was deceased and his estate was represented by Kennedy Murigi Mbau. Relying on Joseph Kamau Musa and Geeta Bharat Shah, the court held that no suit can issue against a deceased person; the proper party is the estate through its duly appointed legal representative. The deceased's name was struck out.
Whether the temporary injunction application met Order 40 rule 1 requirements
Dismissed; no evidence of immediate danger of waste, damage or alienation of the suit properties
The plaintiff relied on a 2018 discovery that original title deeds were held by KPCU, but did not depone that the defendants intended to sell or dispose of the properties. Citing Noor Mohammed Johnmohammed, the court held injunctive orders are meant to avert immediate danger, and absent any threat there was no justification for an injunction, so the Giella conditions need not be considered.
Legal principles established
#- A preliminary objection must be a pure point of law arising from the pleadings; it fails if facts must be ascertained
- No suit can issue against a deceased person; the deceased must be struck out and the estate sued through its legal representative
- To justify a temporary injunction there must be evidence of immediate danger to property by sale or other disposition
Court orders
#- 1.The two notices of preliminary objections by the 2nd and 5th defendants are dismissed entirely
- 2.The 2nd defendant Francis Mbau Murigi (deceased) is struck out of the suit
- 3.The notice of motion application dated November 28, 2022 is dismissed entirely with costs to the 1st and 2nd defendants/respondents
- 4.The suit to be set down for hearing expeditiously
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court) - implied; application anchored on Order 40 Rules 1, 2 & 3 and sections 1A, 1B & 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngumi Farm Limited v Kariuki & 5 others", Case Analysis (2023). Environment & Land Case 28 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18042/eng@2023-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.