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ELCPartially AllowedMeru ELC Case (Notice of Motion dated 29/2/2016) - number not stated in judgment· [2016] KEELC 1274 (KLR)

Consolata Wanja Eustace & 5 others v Meem M'Arimi [2016] KEELC 1274 (KLR)

Environment and Land Court
30 August 2016
PNP. M. Njoroge
2,093 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to keep a landowner off his own land, but blocked him from selling or charging it until the family trust dispute is tried.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (P. M. Njoroge J) determined a Notice of Motion dated 29 February 2016 in which the Plaintiffs, led by the 1st Plaintiff Consolata Wanja Eustace, sought injunctive and inhibitory relief against the Defendant/Respondent, her husband, in respect of L.R. No. ABOGETA/U-CHURE/494. The Plaintiffs asserted that the Defendant held the suit land, their matrimonial home since about 1967, in trust for them, that the Defendant had taken a second wife, assaulted the 1st Plaintiff, damaged her house and threatened to sell the land. The Defendant, through a replying affidavit, denied joint acquisition of the land, asserting he purchased it in 1966 from Mburugu s/o Imuguu, and undertook not to sell it. The application came up inter partes on 30 August 2016 when only the Defendant's counsel attended and sought dismissal and vacation of the ex-parte orders, noting the Defendant needed to sell trees on the land for medical expenses. The court held that courts do not normally injunct an owner from accessing his own land, save in rare circumstances, and that most issues could only be determined at the trial of the main suit. The application was dismissed with costs to be in the cause, but the court, in the interest of justice and under Section 63 of the Civil Procedure Act, issued an order of inhibition restraining the Defendant from charging, disposing of, selling or alienating the suit parcel pending the hearing and determination of the suit.

Key legal issues

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01

Whether an owner of land can be injuncted from accessing his own land pending trial

Holding

No - injunctive orders restraining a landowner from accessing his land are exceptional and were not warranted on these facts

Reasoning

The court agreed with defence counsel that courts do not normally injunct an owner from accessing his own land, save in very rare circumstances. Many of the contested issues, including the alleged trust and the parties' entitlements, could only be resolved after the main suit was heard. The interlocutory injunction was therefore refused while the substantive rights remained for trial.

p. 5
02

Whether the suit land should be protected from alienation pending trial

Holding

Yes - an order of inhibition under Section 63 of the Civil Procedure Act issued to preserve the suit property pending hearing and determination of the suit

Reasoning

Although the dismissal of the application meant the injunction was refused, the court exercised its power under Section 63 of the Civil Procedure Act to issue an inhibition restraining the Respondent from charging, disposing of, selling or alienating the suit parcel pending the hearing and determination of the suit, in the interest of justice.

p. 5

Legal principles established

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  • Courts do not normally grant injunctions restraining an owner of land from accessing his own land; such orders are reserved for very rare circumstances

Court orders

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  1. 1.The application is dismissed with costs to be in the cause
  2. 2.An Order of Inhibition is issued restraining the Respondent by himself, servants or agents from charging, disposing, selling or alienating Land Parcel No. ABOGETA/U-CHURE/194 pending hearing and determination of the suit, in the interest of justice and in accordance with Section 63, Civil Procedure Act

Authorities

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Legislation

  • Civil Procedure ActSection 63
Jurisdiction invoked
Environment and Land Court jurisdiction; Section 63 of the Civil Procedure Act invoked for the order of inhibition

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, "Consolata Wanja Eustace & 5 others v Meem M'Arimi [2016] KEELC 1274 (KLR)", Case Analysis (2016). Meru ELC Case (Notice of Motion dated 29/2/2016) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1274/eng@2016-08-30

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