Jones Mavuti Kisyula & 2 others v Haron Gekonge Nyakundi & 11 others [2018] KEELC 625 (KLR)
The bottom line
#The court dismissed everyone's applications: community representatives can keep their land case alive, but no injunction was granted because they lacked title documents.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiffs have the locus standi to institute these proceedings
- 2.Whether the Memorandums of Appearance and Defences filed by the Defendants should be struck out for having been filed out of time
- 3.Whether the Amended Plaint dated 4th April, 2018 should be struck out
- 4.Whether the Plaintiffs are entitled to an order of injunction
Key legal issues
#Locus standi of the Plaintiffs
The Application seeking to strike out the Plaint for want of locus standi was dismissed; authority of the Plaintiffs to sue for the group is a matter for trial
A registered Self Help Group has no capacity to sue in its own name, but officials mandated by members may sue in their own names. Whether the three Plaintiffs have such authority, and whether individual members have recognized rights, can only be determined at trial. The recent registration of the group cannot defeat a claim of long occupation by its members.
Whether Appearances and Defences filed out of time should be struck out
Striking out refused; the omissions were curable irregularities and no prejudice was shown
Order 7 Rule 1 requires a Defence within fourteen days of appearance, but non-compliance is an irregularity curable except in very clear cases. Following Sir Ali Bin Salim Primary School and Salat v IEBC, procedural infractions causing no injustice should not invalidate pleadings. The matter had not even proceeded to pre-trial and the Plaintiffs showed no prejudice.
Whether the Amended Plaint introducing an adverse possession claim should be struck out
Amendment valid without leave; adverse possession may be pleaded in a Plaint in the alternative; no further particulars required
Pleadings had not closed when the Amended Plaint was filed because the 4th and 6th Defendants filed their Defences on 4th April, 2018, so the Plaintiffs could amend without leave under Order 8 Rule 1(1). Order 37 Rule 7 applies only where adverse possession is the sole claim. The Plaintiffs' averment of long possession suffices as particulars.
Whether an interlocutory injunction should issue
Application dismissed; Plaintiffs failed to establish a prima facie case or irreparable damage
The Plaintiffs did not annex copies of titles to the parcels they claim, and the court could not ascertain the specific parcels claimed. L.R. No. 12610/2 no longer exists, having been sub-divided in 1988, and the Defendants neither own nor claim 12610/3, 12610/4 and 12610/5. The three photographs exhibited showed no nexus to the Defendants' parcels and no developments were shown on L.R. Nos. 13666-13671.
Legal principles established
#- Self Help Groups registered under the Ministry of Gender and Social Affairs cannot sue in their own names, but their officials mandated by members may sue on behalf of the members
- A claim for adverse possession may be raised by way of Plaint where it is pleaded in the alternative to another claim; Originating Summons under Order 37 Rule 7 is required only where it is the sole claim
- A party may amend pleadings once without leave before pleadings close, and pleadings close fourteen days after service of the last defence
- Striking out a pleading filed out of time is an extreme measure resorted to only in the clearest of cases
Court orders
#- 1.Dismissal of the 6th and 9th Defendants' Application dated 30th May, 2018
- 2.Dismissal of the Plaintiffs' Application dated 23rd November, 2017 with no order as to costs
- 3.Dismissal of the Applications dated 17th April, 2018, 23rd May, 2018 and 30th May, 2018 with no order as to costs
- 4.Dismissal of the Notice of Preliminary Objection dated 27th February, 2018 with no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court
Relief refused
#Interlocutory injunction restraining the Defendants from interfering with the Plaintiffs' possession of L.R. No. 12610/2, 12610/3, 12610/4 and 12610/5
Plaintiffs failed to establish a prima facie case with chances of success and showed no irreparable damage not compensable by damages
Striking out of the Defendants' Memorandums of Appearance and Defences
Filing out of time was an irregularity curable in the interests of justice; no prejudice shown
Costs
All applications and the Notice of Preliminary Objection dismissed with no order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For those reasons, I dismiss the Application dated 23 rd November, 2017 but with no order as to costs. The Applications dated 17 th April, 2018, 23rd May, 2018 and 30th May, 2018 and the Notice of Preliminary Objection dated 27 th February, 2018 are also dismissed with no order as to costs.
where the claimant is praying, in the alternative, that he is entitled to land by adverse possession, he can commence such a suit by way of a Plaint
Self Help Groups registered under the Ministry of Gender and Social Affairs have no capacity to institute a suit in their own names
where a procedural infraction causes no injustice by way of injurious prejudice to a person such infraction should not have an invalidating effect
Issues in the judgment
#Judgment refers inconsistently to the Defendants' locus standi application as brought by the 6th and 9th Defendants in one passage and the 6th and 8th Defendants in another
Judgment uses 'he' for the 7th Defendant while elsewhere describing her as a widow ('her late husband')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jones Mavuti Kisyula & 2 others v Haron Gekonge Nyakundi & 11 others [2018] KEELC 625 (KLR)", Case Analysis (2018). Not stated in judgment (Machakos ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/625/eng@2018-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.