Kishushe Ranching Coop. Society Ltd v Newton Kifuso [2021] eKLR

Kenya Law

Automated Summary

Key Facts

The plaintiff, Kishushe Ranching Coop. Society Ltd, is the registered proprietor of Land Reference Number 28984. The defendant, Newton Kifuso, occupied a portion of the land without consent and began constructing a residence. The plaintiff sought summary judgment for vacant possession under Order 36 Rule 1 of the Civil Procedure Rules, arguing no triable issues existed. The defendant contested the title's validity, alleging fraud and claiming the suit is sub judice due to other pending cases (e.g., ELC Petition No. 26 of 2019). The court ruled there were no genuine triable issues, granted the summary judgment, and ordered the defendant to vacate the land within 60 days or face eviction. The defendant's preliminary objection was dismissed as the sub judice principle did not apply.

Issues

  • The court had to determine if the defendant's occupation of the land was lawful, given his claim of purchasing the land from a resident of the Kishushe Adjudication Section. The defendant's occupation without the plaintiff's permission was deemed unlawful, and the court granted the plaintiff's application for vacant possession.
  • The court had to determine if the defendant's preliminary objection raised genuine triable issues that would require a full trial, considering the legal principles from various cases. The defendant argued that the plaintiff's title was fraudulent and that the suit is sub judice, but the court found no genuine triable issues, concluding that the defendant's objections were not valid grounds for a full trial.
  • The court considered the validity of the plaintiff's title under Section 26 of the Land Registration Act, including whether it was obtained fraudulently or illegally. The plaintiff provided a Certificate of Title, and the court found no grounds to challenge it, except for the defendant's claims of fraud which were not substantiated.
  • The court assessed whether the current suit was sub judice under Section 6 of the Civil Procedure Act and Section 19(2) of the Environment and Land Court Act, given the pendency of ELC Petition No. 26 of 2019 and Mombasa ELC 260 of 2015. The court concluded that the principle of sub judice does not apply here as the defendant is not a party in those cases.

Holdings

  • The sub judice argument under Section 6 of the Civil Procedure Act was dismissed.
  • No triable issues were found to warrant a full trial.
  • The defendant's occupation of the land without the plaintiff's permission was deemed unlawful trespass.
  • The preliminary objection based on Section 19(2) of the Environment and Land Court Act was rejected.
  • The court confirmed the plaintiff is the registered proprietor of the suit property (LR 28984) under the Land Registration Act.

Remedies

  • Costs of the application are awarded to the plaintiff.
  • The defendant shall within 60 days of the date of this ruling vacate and/or deliver up possession of that portion of LR 28984 in his occupation, in default, the plaintiff shall be at liberty to evict the defendant, and eviction orders to issue.

Legal Principles

The court applied the principle that summary judgment is appropriate when no triable issues exist, as outlined in cases like Continental Butchery Ltd v Nthiwa. It also determined that Section 6 of the Civil Procedure Act (sub judice) did not apply because the defendant was not a party in the referenced prior proceedings (ELC 260 of 2014 and ELC Petition 26 of 2019). The ruling emphasized the importance of procedural efficiency and the need to avoid unnecessary delays in justice administration under the Environment and Land Court Act.

Precedent Name

  • Barclays Bank of Kenya Ltd -v- Elizabeth Agidza & 2 Others
  • Ternic Enterprises Limited -v- Waterfront Outlets Limited
  • Zola -v- Ralli Bros
  • Gupta -v- Continental Builders Ltd
  • Cecilio Murango Mwenda & 6 Others -v- Isaac Kimathi Ikunga
  • Muturi Investments Ltd -v- NBK
  • Continental Butchery Limited -v- Nthiwa
  • Sadolin Paints Ltd-v- Wali Mohamed & Co.
  • Ahmednassir Abdikadir & Company Advocates -v- National Bank of Kenya Limited
  • Lalji t/a Vakkep Building Contractors -v- Carousel Limited
  • Isaac Awoudno -v- Surgipharm Limited & Another
  • Wavinya Ndeti -v- Independent Electoral & Boundaries Commission (IEBC) & 4 Others
  • Mukisa Biscuit Manufacturing Co. Ltd -v- West End Distributors Ltd
  • Thiba Min. Hydro Co. Ltd -v- Josphat Karu Ndwiga
  • Shah-v- Padamshi

Cited Statute

  • Civil Procedure Act
  • Land Registration Act
  • Environment and Land Court Act

Judge Name

C.K. Yano

Passage Text

  • Having considered the pleadings and the evidence on record, I do find that the notice of motion dated 27th September, 2019 is merited and the same is hereby allowed as prayed. The defendant shall within 60 days of the date of this ruling vacate and/or deliver up possession of that portion of LR 28984 in his occupation, in default, the plaintiff shall be at liberty to evict the defendant, and eviction orders to issue.
  • The principles which guide the courts in determining an application for summary judgment are well settled. In the case of Gupta -v- Continental Builders Ltd (1978)KLR 83, the Court of Appeal stated: 'If no prima facie triable issue is put forward to the claim of the plaintiff, it is the duty of the court forthwith to enter summary judgment...'
  • One of the grounds raised by the defendant in the preliminary objection filed is that the suit offends the provisions of Section 19 (2) of the Environment and Land Court... It is therefore clear that the principle of sub judice is inapplicable in this case.