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ELCDismissedKisumu Environment and Land Case (suit number not stated in the excerpt)· [2017] KEELC 363 (KLR)

Nicholas Okoth Miruka & 5 others v Henry Odhiambo Akech [2017] KEELC 363 (KLR)

Environment and Land Court
8 November 2017
592 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kisumu refused to stop family members from using disputed ancestral land, ordering everyone to keep using it as before until full trial.

What this practically means

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Executive summary

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The Defendant, Henry Odhiambo Akech, moved the court by notice of motion dated 15th March 2017 seeking a temporary injunction against the five Plaintiffs and two others, restraining them from excavating or harvesting stones and murram, ploughing, fencing off or otherwise interfering with his occupation and use of land parcel Kisumu/Buoye/3503 pending hearing of the suit. The Plaintiffs opposed through a replying affidavit sworn on 22nd May 2017. The Defendant also lodged a preliminary objection dated 3rd February 2017 questioning, among five grounds, the Plaintiffs' capacity to sue. At the hearing on 30th May 2017, counsel for the Defendant and the 1st Plaintiff in person addressed the court. The court framed four issues: whether the Defendant had met the Giella v Cassman Brown principles for a temporary injunction; whether the Plaintiffs, as grandchildren of the late Charles S. Akech, had capacity to sue; what orders to issue; and costs. It noted that the parties all describe themselves as biological grandsons and surviving beneficiaries of the late Charles S. Akech, and that the Plaintiffs' claim is that the parcel is ancestral land which the Defendant acquired without their consent and in contravention of the law of succession. The court declined to grant the injunction and rejected the preliminary objection, holding the suit should proceed to a full hearing on the merits. It directed that the parties continue using the land as before, and dismissed both the motion and the preliminary objection with costs in the cause.

Key legal issues

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01

Temporary injunction under Giella v Cassman Brown

Holding

The Defendant did not establish a prima facie case with a probability of success justifying an injunction against the Plaintiffs

Reasoning

The court weighed the Defendant's notice of motion against the Plaintiffs' claim that parcel Kisumu/Buoye/3503 is ancestral land on which they and other family members live and that the Defendant acquired it without their consent and in contravention of the law of succession. Rather than grant the restraint sought, the court preserved the status quo of use by all parties pending full hearing.

p. 2
02

Plaintiffs' capacity to sue as grandchildren of the late Charles S. Akech

Holding

The preliminary objection on capacity was rejected; the suit should proceed to hearing for determination on the merits

Reasoning

The Defendant raised a five-ground preliminary objection including lack of capacity. The court noted that the Plaintiffs describe themselves as 'other surviving beneficiaries' of the late Charles S. Akech and as biological grandsons of the deceased alongside the Defendant, making the parties related. The court considered it just that the dispute be ventilated at a full hearing.

p. 2

Legal principles established

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  • Where family members are all grandchildren of a deceased title-holder, questions of capacity and entitlement to ancestral land are best resolved at a full hearing rather than on an interlocutory application or preliminary objection
  • Pending full determination of an inter-family land dispute, the court may preserve the status quo by directing parties to continue using the land as before

Court orders

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  1. 1.The Defendant's notice of motion dated 15th March 2017 is dismissed with costs in the cause
  2. 2.The Defendant's notice of preliminary objection dated 3rd February 2017 is dismissed with costs in the cause
  3. 3.The parties should be allowed to continue using the land in the same manner they have been doing before pending the hearing and determination of the suit

Authorities

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Legislation

  • Law of Succession Actnot specified (referred to generically as 'the law of succession')

Cases cited (1)

  • Giella versus Cassman Brown
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) of the Constitution, as the court is styled Environment & Land Court)

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, "Nicholas Okoth Miruka & 5 others v Henry Odhiambo Akech [2017] KEELC 363 (KLR)", Case Analysis (2017). Kisumu Environment and Land Case (suit number not stated in the excerpt). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/363/eng@2017-11-08

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