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ELCDismissedNot stated in the ruling· [2024] KEELC 1334 (KLR)

Koinange & another v Wanjohi & 8 others (Environment & Land Case E013 of 2020) [2024] KEELC 1334 (KLR)

Environment and Land Court
14 March 2024
3,077 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Nakuru dismissed both striking-out applications in the Mau Narok land case, keeping all parties in the suit and sending ownership disputes to trial.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Nakuru, delivered by Mwangi Njoroge J on 14 March 2024, determines two interlocutory applications arising from a land dispute over LR No. 8669/3, Mau Narok. The first application, by the 9th defendant, sought striking out of the suit against him on grounds of improper joinder and lack of a cause of action, asserting he is a Farm Manager appointed by Eliza Mbatia, the declared sole wife of the late Paul Mbatia Mbiyu Koinange. The second, by the 7th and 8th defendants (the Mpoe brothers), sought an order compelling the Chief Land Registrar to furnish a certified title extract, striking out the plaintiffs' suit for want of locus standi, entry of judgment on their counterclaim for adverse possession against Impulse Developers Co Ltd, and alternatively a temporary injunction over 800 acres (IR 43067) allegedly registered to their late father Kikenyi Ole Mpoe. The court dismissed both applications with costs to the plaintiffs only. It held that the 9th defendant is a competent party who must explain his employment at trial, or if a trespasser, remain to face judgment; that the court cannot aid one party to gather evidence against another and must remain neutral, with grievances against the Registrar lying in public law; that ownership disputes and forgery allegations are matters for trial; and that the 7th and 8th defendants lack a prima facie case having never asserted their claims in the long-pending Succession Cause No. 527 of 1981. Parties were directed to comply with Order 11 on trial bundles, the plaintiffs within 30 days and the defendants within the following 30 days, for mention for hearing directions.

Key legal issues

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01

Joinder of the 9th defendant

Holding

The 9th defendant is a competent party to the suit; the application to strike him out is dismissed

Reasoning

Whether employee or trespasser, the 9th defendant must remain in the proceedings: an employee can explain at trial which principal he serves and on what basis, and a trespasser should remain so that judgment may be entered against him. His employer's capacity is stringently disputed by the plaintiffs, a matter for trial. Final determinations cannot be made at an interlocutory stage.

p. 2
02

Compelling the Chief Land Registrar to produce a certified title extract

Holding

The prayer fails; the applicants seek self-interested evidence and the court must remain neutral

Reasoning

The Registrar is custodian of land records; if the applicants were aggrieved by her inaction, the remedy is public law. Within an adversarial suit, the court cannot be seen to aid one party in acquiring ammunition against another, as this would impair public confidence in its impartiality even in perception only.

p. 5
03

Locus standi of the plaintiffs and striking out the suit

Holding

The striking-out prayer fails; ownership disputes and allegations of forged documents are for trial

Reasoning

The plaintiffs filed a detailed affidavit explaining why the land may still be registered in Impulse's name, including court orders in the succession cause cancelling the transfer to Impulse and a pending counterclaim for rescission. Whether the applicants' documents are genuine and who owns the land are matters for verification at the hearing, not resolvable interlocutorily.

p. 5
04

Temporary injunction for the 7th and 8th defendants

Holding

No prima facie case established; the injunction is refused

Reasoning

Despite the succession cause being one of the oldest in the justice system, the 7th and 8th defendants never objected to the Estate's claim there or claimed entitlement to any land prior to this suit. Their family's presence on the land is explained by their elder brother's employment as Farm Manager, an allegation they did not answer.

p. 5

Legal principles established

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  • A party properly joined as an employee or alleged trespasser should be retained in the suit to explain his position at trial; striking out is reserved for very limited instances and is not to determine the main suit at an interlocutory stage
  • A court should not aid one party in acquiring evidence against another within an adversarial suit; grievances against the Land Registrar's inaction lie in public law

Court orders

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  1. 1.The application dated 3/3/23 is dismissed with costs to the plaintiffs only
  2. 2.The application dated 11/4/2023 is dismissed with costs to the plaintiffs only
  3. 3.Parties shall comply with Order 11 of the Civil Procedure Rules by filing and service of their respective trial bundles, the plaintiffs within the first 30 days and the defendants within the following 30 days
  4. 4.The matter to be mentioned before the ELC Judge sitting at Nakuru for directions as to hearing

Authorities

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Legislation

  • Civil Procedure RulesOrder 11

Cases cited (4)

  • Re Estate of Mbiyu Koinage – Deceased (Nairobi HC Succession Cause No. 527 of 1981)
  • Kiambu Succession Cause No E134 of 2022
  • Nairobi HC Succession Cause No E3230 of 2022
  • NBI ELC 224 of 2013 (Impulse Developers Co. Ltd v Estate of Mbiyu Koinange)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Civil Procedure Rules, Order 11 directions cited)

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, "Koinange & another v Wanjohi & 8 others (Environment & Land Case E013 of 2020) [2024] KEELC 1334 (KLR)", Case Analysis (2024). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1334/eng@2024-03-14

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