Ruling in the matter of the Plaintiff's application dated 30th June 2023, the 1st Defendant's application dated 13th July 2023, the 4th Defendant's application dated 1st August 2023 and the 2nd Defendant's preliminary objection dated 11th July 2023
The bottom line
#A Nairobi land court protected a registered owner's apartments with a temporary injunction but refused to order eviction, and disqualified the buyer's lawyers over a conflict of interest.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata / an abuse of process as raised by preliminary objection
The preliminary objection was dismissed; the Plaintiff is not a party to ELC No. 12 of 2014 and the objection did not meet the Mukisa Biscuit test as a pure point of law.
The court restated the Mukisa Biscuit principles that a preliminary objection must be a pure point of law and the five essential elements of res judicata under Section 7 of the Civil Procedure Act, including that the parties be the same and the issue heard and finally determined. Since the Plaintiff was not a party to ELC No. 12 of 2014 and the interim orders therein did not affect the Plaintiff, the objection failed both doctrinally and factually.
Whether the Plaintiff was entitled to temporary and mandatory injunctions
A temporary injunction issued; the mandatory injunction/vacant possession prayer was refused at the interlocutory stage.
The court found it undisputed that Apartments B4 and D1 are registered in the Plaintiff's name and, applying sections 25 and 26 of the Land Registration Act, found a prima facie case warranting interim relief despite the Plaintiff's lack of possession, and ordered preservation of the property. However, a mandatory injunction for vacant possession at an interlocutory stage would amount to deciding the entire suit and was declined absent special circumstances.
Whether Gichuki King'ara & Co. Advocates should be disqualified from acting for the Plaintiff
The firm and Mr. King'ara were disqualified from representing the Plaintiff.
The court found from the sale agreement that the firm had acted for both the vendor and the purchaser in the very transaction underlying the dispute, creating a likelihood of conflict of interest capable of negating a fair trial. Guided by Guardian Bank Limited v Sonal Holdings, the court looked at the real issues and facts rather than a cursory view, and concluded disqualification was warranted.
Whether the 4th Defendant should be struck out from the proceedings
The 4th Defendant's application to be struck out was dismissed.
Applying the two-part test for necessary parties - a right to relief against the party and necessity for complete adjudication - the court noted the plaint pleads that the 4th Defendant manages the disputed properties, has been served with demands to vacate, and that the Plaintiff seeks an order that the 4th Defendant effect the decree. Striking it out at this stage would not serve the interest of justice.
Legal principles established
#- A preliminary objection must raise only a pure point of law on assumed pleaded facts and cannot be raised where facts must be ascertained or judicial discretion exercised (Mukisa Biscuit test).
- Under sections 25 and 26 of the Land Registration Act, a registered proprietor who is not in physical possession still establishes a prima facie case warranting interim relief to preserve the property.
- A mandatory injunction should not normally be granted at an interlocutory stage absent special circumstances, as it would dispose of the entire suit.
- Where an advocate acted for both the vendor and purchaser in the sale transaction under dispute, there is a likelihood of conflict of interest justifying disqualification from acting for one party in litigation over that transaction.
- A defendant is a necessary party where there is a right to some relief against him and his presence is necessary for effective and complete adjudication of all questions in the suit.
Court orders
#- 1.The preliminary objection dated 11th July 2023 is dismissed for lack of merit.
- 2.The 4th Defendant's application dated 1st August 2023 is dismissed for lack of merit.
- 3.A temporary injunction is issued against the Defendants from leasing and/or subleasing, disposing off the properties known as Apartment No. B4 and Apartment No. D1 in Fine Diamond Apartment on Land Reference No. 209/4517 pending the hearing and determination of the suit.
- 4.The law firm of Gichuki King'ara & Co. Advocates and Peter Gichuki King'ara Advocate are disqualified from representing the Plaintiff in these proceedings.
- 5.Each party to bear own costs of the applications and the Preliminary Objection.
- 6.Parties to comply with the provisions of Order 11 of the Civil Procedure Code within 30 days.
- 7.Matter to be mentioned on 11th March 2024 for further directions.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land known as LR No. 209/4517 (specific enabling provision not cited in the ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ruling in the matter of the Plaintiff's application dated 30th June 2023, the 1st Defendant's application dated 13th July 2023, the 4th Defendant's application dated 1st August 2023 and the 2nd Defendant's preliminary objection dated 11th July 2023", Case Analysis (2024). ELC Case (Nairobi) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/405/eng@2024-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.