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ELCPartially AllowedNot stated in the judgment (application dated 24th July 2017)· [2017] KEELC 334 (KLR)

Rosilan Amisi Atwoli & another v Alfestus Mulwale Matika [2017] KEELC 334 (KLR)

Environment and Land Court
13 December 2017
NMN. A. MATHEKA
1,313 words in judgment
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The bottom line

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A Kenyan court blocked a landowner from selling disputed family land until a court decides who owns it, protecting the deceased owner's heirs.

What this practically means

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Executive summary

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The plaintiffs/applicants, administrators of a deceased person's estate, applied by notice of motion dated 24th July 2017 under Sections 1A, 1B, 3A and 5 of the Civil Procedure Act and Order 51 of the Civil Procedure Rules for a temporary injunction restraining the defendant from trespassing on, resurveying, transferring or disposing of parcel W/BUNYORE/EMUSIRE/998 at Luanda in Vihiga County. They contended that the deceased's portion of land was consolidated into that parcel, which is wholly registered in the defendant's name despite the deceased having lived on and used the land before the 1964 land adjudication and registration. Previous proceedings before the Luanda Land Disputes Tribunal and the Principal Magistrate's Court at Vihiga, instituted by the deceased, had upheld the deceased's interest and directed subdivision into two equal halves, but the deceased died before implementation. The applicants alleged fraudulent registration, violent eviction of the heirs, and a risk that the defendant would transfer the land to third parties, causing irreparable loss. The defendant was served but did not attend court or file papers in opposition. The court applied the Giella v Cassman Brown principles and the definition of a prima facie case in Mrao Ltd v First American Bank of Kenya Ltd, and found the applicants had demonstrated a prima facie case with a probability of success and a risk of irreparable loss. It granted a temporary injunction pending the hearing and determination of the suit and awarded costs of the application to the applicants. Judgment delivered at Kakamega on 13th December 2017 by N.A. Matheka J.

Key legal issues

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01

Whether the applicants established a prima facie case with a probability of success

Holding

Yes. The applicants are administrators of a deceased whose portion of land was consolidated into the defendant's wholly-registered parcel; prior tribunal and magistrates' court proceedings supported the claim, and the defendant did not oppose the application.

Reasoning

The court considered the applicants' submissions and annexures, including the limited grant, tribunal proceedings and death certificate. The deceased had pursued proceedings before the Luanda Land Disputes Tribunal and the Principal Magistrate's Court at Vihiga to reclaim his consolidated portion, and the tribunal had decided the parcel be subdivided into two equal halves. The defendant registered the whole parcel in his own name and violently chased the heirs away. The application was unopposed, so the court found a prima facie case with probability of success.

p. 3
02

Whether the applicants would suffer irreparable loss if the defendant is not restrained

Holding

Yes. The defendant may transfer or sell the suit parcel and the beneficiaries would lose their portion to a third party, a loss not adequately compensable in damages.

Reasoning

The court found that unless restrained, the defendant may proceed to transfer and/or sell the suit parcel, and the applicants and other beneficiaries would suffer irreparable loss and damages as they would lose their portion to a third party. This satisfied the second Giella criterion and justified granting the injunction pending trial.

p. 3

Legal principles established

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  • The conditions for granting an interlocutory injunction are: a prima facie case with probability of success; irreparable injury not adequately compensable by damages; and, if in doubt, the balance of convenience
  • A prima facie case is one in which, on the material presented, the court concludes that a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party; it is more than an arguable case

Court orders

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  1. 1.Temporary injunction restraining the defendant, his agents, servants or any person acting through his instructions from trespassing, resurveying, transferring and disposing/selling parcel W/BUNYORE/EMUSIRE/998 at Luanda within Vihiga County pending the hearing and determination of the suit
  2. 2.Costs of the application to be borne by the respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 5
  • Civil Procedure RulesOrder 51

Cases cited (2)

  • Giella vs. Cassman Brown
    (1973) EA 358
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 others
    {2003}
Jurisdiction invoked
Sections 1A, 1B, 3A and 5 of the Civil Procedure Act Cap 21 and Order 51 of the Civil Procedure Rules

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, "Rosilan Amisi Atwoli & another v Alfestus Mulwale Matika [2017] KEELC 334 (KLR)", Case Analysis (2017). Not stated in the judgment (application dated 24th July 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/334/eng@2017-12-13

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