Da Costa v Maina (Environment & Land Case E177 of 2023) [2024] KEELC 1375 (KLR)
The bottom line
#The Environment and Land Court replaced a one-sided injunction with a mutual freeze on a disputed Nairobi property and ordered that key government land agencies be joined to the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant's application met the threshold for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
The application met the threshold; the post-order demolition of structures on the suit property and the involvement of the Nairobi City County Government constituted sufficient reason, and the alleged transfer of the title to Wareysi Tech Ltd constituted new and important matter withheld by the Plaintiff
The court held that the demolition of the structures and the County's securing of the property after the orders of 15th January 2024 was a significant development qualifying as sufficient reason to revisit the matter. Further, the Plaintiff did not unequivocally deny that the title she relied on had been transferred to Wareysi Tech Ltd, a company in which she is a director, meaning information within her own knowledge had been withheld from the court. Both limbs of Order 45 were thereby engaged.
What orders should issue in place of the injunction granted on 15th January 2024
An order of status quo preserving the suit property as at the date of the ruling, binding both parties equally, pending hearing and final determination of the suit
Guided by the doctrine of lis pendens, Article 159 of the Constitution and Clause 32 of the ELC Practice Directions 2014, and considering the unique circumstances including the demolition and the County's takeover of the property, the court found the appropriate order was one of status quo so that no party gains undue advantage pending trial.
Whether the intended 2nd and 3rd Defendants are necessary parties
Yes; the Nairobi City County Government and the National Land Commission were necessary parties, and the court also suo motu directed the joinder of the Chief Land Registrar as 4th Defendant
The Plaintiff explained that the County had fenced off the property and that the joinder was necessary to shed light on the historical background of the suit property, lease renewal and current ownership. The court found the intended Defendants necessary and, considering the issues raised, added the Chief Land Registrar under Order 1 rule 10.
Legal principles established
#- Grounds for review are restricted to discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or any other sufficient reason, and the application must be made without unreasonable delay
- Review cannot be claimed merely for a fresh hearing or to re-argue an erroneous view earlier taken; it lies only for correction of a patent error of law or fact apparent on the record
- The doctrine of lis pendens remains applicable in Kenya after the repeal of the Indian Transfer of Property Act by virtue of section 3(1) of the Judicature Act
- A company is a separate legal entity independent of its shareholders and directors, capable of suing and being sued in its own name
Court orders
#- 1.The court reviewed its ruling and orders of 15th January 2024 and substituted the said orders with an order of status quo pending the hearing and final determination of the suit
- 2.No party should access, build, construct, interfere, sell, transfer, charge or otherwise deal in any manner with the suit property pending the hearing and final determination of the suit
- 3.The Plaintiff is granted leave to add the Nairobi City County Government and the National Land Commission as the 2nd and 3rd Defendants respectively
- 4.The Plaintiff is directed to add the Chief Land Registrar as the 4th Defendant
- 5.The Plaintiff to amend her plaint accordingly, join the three additional Defendants, take out summons to enter appearance and serve the same upon the said Defendants within 21 days from the date of the ruling
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 80 of the Civil Procedure Act; Order 45 & Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Da Costa v Maina (Environment & Land Case E177 of 2023) [2024] KEELC 1375 (KLR)", Case Analysis (2024). Environment & Land Case E177 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1375/eng@2024-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.