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ELCPartially AllowedEnvironment & Land Case 214 of 2009· [2023] KEELC 17065 (KLR)

Ndolo v Musyoka & 2 others

Environment and Land Court
26 April 2023
1,994 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan land court froze a disputed property's status quo and blocked any sale, instead of granting the full eviction protection the occupants wanted.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (CA Ochieng, J) determined the Defendants' Notice of Motion dated 31st May 2022 in a long-running land dispute over parcels Matungulu/Sengani/3116 and 3463. The Defendants sought temporary injunctions restraining the Plaintiff from evicting them and their tenants, and an inhibition order barring dealings with the suit properties. They asserted ancestral ownership, graves of parents and grandparents on the land, heavy investment, and harassment by the Plaintiff including blocked access, unlawful arrests and eviction notices, and that parcel 3463 had been subdivided despite a caution. The Plaintiff opposed, asserting sole registered proprietorship, that the Defendants had their own inherited parcel (3321), that they were trespassers, and that an injunction had been granted in his favour by Lenaola SCJ on 15th July 2009. The court framed a single issue: whether the Defendants were entitled to injunctive relief pending determination of the suit. Applying Giella v Cassman Brown and the prima facie case test in Mrao Ltd v First American Bank, the court found the 2009 injunction had been issued for only two weeks and its continuation was not demonstrated; the Plaintiff admitted a surveyor confirmed encroachment and did not deny the Defendants' tenants and graves on the land. The court held a prima facie case was established but, because the Plaintiff is the registered proprietor, granted status quo preserving both parties' occupation and directed the Land Registrar Machakos to register an inhibition order over both parcels pending hearing and determination of the suit. Parties were urged to comply with Order 11 within thirty days. No costs order was made.

Key legal issues

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01

Whether the Defendants established a prima facie case warranting interlocutory injunctive relief

Holding

Yes - the Defendants established a prima facie case, but the court granted status quo and inhibition orders instead of the injunction sought

Reasoning

Applying Giella v Cassman Brown and the prima facie case definition in Mrao Ltd v First American Bank, the court noted the Plaintiff had not shown the 2009 injunction subsisted beyond two weeks, admitted a surveyor confirmed encroachment, and did not deny the Defendants' tenants and graves on the land. Occupation and the interest of justice justified protecting the Defendants' rights pending determination.

p. 4
02

Whether the Plaintiff's 2009 injunction order barred the Defendants from seeking similar relief

Holding

No - the 2009 injunction was issued for only two weeks and the Plaintiff did not demonstrate it was extended or that the underlying application was determined

Reasoning

The court perused the order annexed as 'MN 4' and found the injunction issued by Lenaola SCJ on 15th July 2009 was for two weeks only, with the Plaintiff directed to set his application down for hearing on 29th July 2009. The Plaintiff neither showed the application was determined nor annexed an order extending the injunction for the pendency of the suit.

p. 3

Legal principles established

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  • Where parties are in occupation of suit property pending trial, the court may preserve the position through status quo and inhibition orders rather than a full injunction

Court orders

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  1. 1.Status quo be maintained where no party is allowed to interfere with the opposing parties' occupation of the suit property, pending the outcome of this suit
  2. 2.The Land Registrar Machakos be and is hereby directed to register an inhibition Order on land parcel numbers Matungulu/Sengani/3116 and Matungulu/Sengani/3463 pending the hearing and determination of this suit
  3. 3.Parties urged to comply with Order 11 of the Civil Procedure Rules within thirty (30) days from the date hereof

Authorities

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Legislation

  • Civil Procedure RulesOrder 11

Cases cited (11)

  • Giella Vs Cassman Brown & Company Limited
    (1973) EA 358

    Principles for granting interlocutory injunctions

  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125

    Definition of a prima facie case

  • John Nzomo Wambua v Joseph Taiti Wambua
    (2021) eKLR
  • Central Bank of Kenya & Another v Uhuru Highway Development Ltd & 4 Others
  • Hutchings Biemer Ltd v Barclays Bank of Kenya Ltd & Another
  • Tritex Industries Limited & 3 Others v National Housing Corporation & Another
    (2014) eKLR
  • Dorcas Muthoni & 2 Others v Michael Ireri Ngari
    (2016) eKLR
  • Teresia Waithira K. Njuguna v John Otieno Nyandew & Another
    (2015) eKLR
  • Law Society of Kenya vs Commissioner of Lands & Others
    Nakuru High Court Civil Case No. 464 of 2000
  • Kennedy Mokua Ongiri vs John Nyasende Mosioma & Florence Nyamoita Nyasende
    (2022) eKLR
  • Republic vs Attorney General & Another Ex parte James Alfred Koroso
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (Article 162(2)(b) of the Constitution, as established by statute); not expressly cited in the ruling

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, "Ndolo v Musyoka & 2 others", Case Analysis (2023). Environment & Land Case 214 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17065/eng@2023-04-26

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