Adam Ambani Mulunda v Richard Mapesa Matuli [2017] KEELC 753 (KLR)
The bottom line
#A Kenyan court blocked a landowner from enforcing an earlier judgment that had been stayed and reviewed, and preserved the disputed land's status quo pending a surveyor's report.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment of 19th September 2012 still stands for enforcement purposes
It does not; the judgment was both stayed and reviewed by the ruling of 28th January 2015, which directed that the judgment be varied to the extent of the measurements taken by a surveyor of the portion occupied by the plaintiff and his family
The defendant applied for review on 13th November 2013 after the District Surveyor's report showed parcel 953 was far smaller on the ground than in the records. The court allowed the review on 28th January 2015, staying execution and ordering the plaintiff to engage a surveyor to establish the acreage and the portion occupied, upon which the judgment would be varied. The plaintiff instead sought to enforce the original decree, which the court held was no longer available for enforcement.
Whether the plaintiff is entitled to the whole of land parcel No. S. Wanga/Musanda/953 (6.8 hectares)
No; the parcel was to be shared between the plaintiff and the defendant, and the plaintiff is only entitled to the portion actually occupied by him and his family, which may be less than 6.8 hectares
The surveyor's reports showed the suit parcel measured approximately 4.54 to 4.93 hectares, not the 8.6 hectares shown on the search certificate, and that the shortfall had to be made up by hiving land off parcel 954. The judgment as reviewed directed that the plaintiff be awarded only the portion found to be occupied, with the defendant retaining the remainder, pending the surveyor's report.
Whether the defendant qualifies for an injunction under the Giella principles
Yes; the defendant showed a prima facie case founded on the subsisting review and stay orders, and the injunction was granted to preserve the status quo pending the surveyor's report and the plaintiff's compliance with the order of 28th January 2015
The court found the plaintiff had invaded the whole suit land, ploughed it, purportedly sold portions, and threatened to demolish the defendant's houses, altering the character of the land to the defendant's detriment while the court-ordered survey remained outstanding. Maintaining the status quo by injunction was held fair pending the surveyor's report.
Legal principles established
#- A judgment that has been reviewed and stayed cannot be enforced through execution or by compelling the execution of transfer documents; a party must instead comply with the orders made on review
- Interlocutory injunctions are granted on the Giella v Cassman Brown principles: prima facie case with probability of success, irreparable harm not compensable in damages, and, if in doubt, the balance of convenience
- An interlocutory injunction is an equitable relief and may be refused where the applicant's conduct does not meet the approval of a court of equity
Court orders
#- 1.The plaintiff's application dated 10th June 2013 is dismissed with costs to the defendant
- 2.An order of injunction is issued against the plaintiff/respondent restraining him, his agents, relatives, servants or any other person claiming under him from selling, alienating, laying claim to, trespassing onto, developing, ploughing or otherwise dealing with the portion of land parcel No. S. Wanga/Musanda/953 in the occupation and use of the defendant/applicant, pending the plaintiff's full compliance with the court order dated 28th January 2015
- 3.Costs of the defendant's application dated 20th November 2015 awarded to the defendant/applicant
- Jurisdiction invoked
- Civil Procedure Act (sections 1A, 3, 3A, 63, 98) and Civil Procedure Rules (Order 40 rule 1, Order 51 rule 1); original jurisdiction in the suit filed as Kakamega High Court Civil Suit No. 40 of 2011 (OS)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adam Ambani Mulunda v Richard Mapesa Matuli [2017] KEELC 753 (KLR)", Case Analysis (2017). Kakamega High Court Civil Suit No. 40 of 2011 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/753/eng@2017-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.