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ELCDismissedNot stated in the judgment (Notice of Motion dated 22nd July, 2015)· [2016] KEELC 1149 (KLR)

Peter Ndirangu Nyambura & another v Peter Ndirangu Muturi [2016] KEELC 1149 (KLR)

Environment and Land Court
4 February 2016
LWL N Waithaka
2,040 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land dispute went to the Environment and Land Court in Nyeri; the plaintiffs lost their bid to block their rival, who had the older title and actual possession.

What this practically means

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Executive summary

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The plaintiffs, Peter Ndirangu Nyambura and Joel Ndirangu Njoki, moved the court by notice of motion dated 22nd July, 2015 seeking to restrain the defendant, Peter Ndirangu Muturi, from trespassing on, entering, demolishing structures on, tilling or otherwise interfering with their quiet possession of Mutara/Mutara Block II/73 pending the hearing of the application and the suit. The plaintiffs claimed title through their deceased grandfather, who held a plot in Othaya Mainga Chinga Exffaco Limited, upon whose membership list they obtained title after the company misplaced the balloting documents. The defendant opposed the application, asserting that he had been in possession since 1971, held a valid title issued on 7th September, 2011 through his mother, had effected massive developments, and that the plaintiffs' registration was irregular, mistaken, fraudulent and illegal. He also raised a territorial jurisdiction objection. The court framed three issues: jurisdiction, entitlement to the orders sought, and costs. On jurisdiction, the court adopted Lydia Achieng Abura v Usonik Farm Purchase Cooperative Society Ltd, holding that the Environment and Land Court is a superior court of record with national jurisdiction and that Section 12 of the Civil Procedure Act applies only to subordinate courts. On the injunction, applying Giella v Cassman Brown and the Mrao definition of a prima facie case, the court found both parties hold titles, the defendant's title predates the plaintiffs', the allegation of irregularity remained undetermined, and the plaintiffs neither proved possession nor controverted the defendant's claim of possession since 1971. The application was dismissed with costs to the defendant.

Key legal issues

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01

Territorial jurisdiction of the Environment and Land Court

Holding

The court has jurisdiction; its jurisdiction is national, not local, and Section 12 of the Civil Procedure Act applies only to subordinate courts.

Reasoning

The respondent objected that the court lacked territorial jurisdiction over the suit property. The court adopted the decision in Lydia Achieng Abura v Usonik Farm Purchase Cooperative Society Ltd, where Kaniaru J held that the ELC is a superior court of record at par with the High Court, with national jurisdiction, and that Section 12 of the Civil Procedure Act applies only to subordinate courts with local limits. The objection therefore failed.

p. 3
02

Whether the applicants were entitled to a temporary injunction

Holding

No. The applicants failed to establish a prima facie case; both parties hold titles, the respondent's title predates theirs, and the applicants did not prove possession or controvert the respondent's averments.

Reasoning

Applying the Giella v Cassman Brown conditions, the court found both parties claim entitlement and both hold title, with the respondent's title issued first. The allegation that the respondent's title was irregularly obtained had not been determined and could not found the application. The applicants, as claimants, were duty bound to prove they were in possession; their failure to controvert the respondent's claim of possession since 1971 was fatal to the application.

p. 4

Legal principles established

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  • The Environment and Land Court is a superior court of record whose jurisdiction is national, not local; Section 12 of the Civil Procedure Act on territorial jurisdiction applies only to subordinate courts
  • A party seeking a temporary injunction must establish a prima facie case with a probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience (Giella v Cassman Brown)
  • A temporary injunction, being an equitable remedy, will not be granted to a applicant who has not approached the court with clean hands; the court should take the course carrying the lower risk of injustice
  • Uncontroverted averments in a replying affidavit are deemed admitted

Court orders

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  1. 1.The application dated 22nd July, 2015 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 12

Cases cited (5)

  • Lydia Achieng Abura v. Usonik Farm Purchase Cooperative Society Ltd
    (2014) eKLR
  • Daniel Kimani Moseka vs. Japheth Arthur Mwangi Kiurire
    HCC No.228/2011, Machakos
  • Giella VS Cassman Brown & Co. Ltd
    1973 E.A 358
  • Mrao VS First American Bank of Kenya Ltd
    Civil Appeal NO. 39 of 2002 (2003 e K.L.R)
  • Films Rover International
    1980 3 ALL. E.R 772
Jurisdiction invoked
Environment and Land Court jurisdiction as a superior court of record with national, not local, jurisdiction (Section 12 of the Civil Procedure Act held applicable only to subordinate courts)

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, "Peter Ndirangu Nyambura & another v Peter Ndirangu Muturi [2016] KEELC 1149 (KLR)", Case Analysis (2016). Not stated in the judgment (Notice of Motion dated 22nd July, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1149/eng@2016-02-04

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