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ELCPartially AllowedNot stated in the judgment (Meru ELC; suit over land parcel No. 1249 Antuamburi Adjudication Section)· [2017] KEELC 1014 (KLR)

Esther Kamathi Mwimbi v Zaverio Mithika [2017] KEELC 1014 (KLR)

Environment and Land Court
13 November 2017
LML. N. Mbugua
2,089 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (L. N. Mbugua, ELC Judge) dealt simultaneously with two applications arising from a dispute over land parcel No. 1249 (about 11.91 acres) in Antuamburi Adjudication Section. The plaintiff, a widow holding a limited grant over the estate of her late husband, the recorded owner of the parcel, sought a temporary injunction restraining the defendant from interfering with her possession, alleging that on 10.05.2017 the defendant and his family threatened to forcibly evict her and her children. The defendant sought a stay of the suit pending the outcome of Meru High Court Judicial Review No. 7 of 2017 between the same parties, in which he had obtained leave to apply for certiorari and prohibition against the DLASO's decision of 25.11.2016 in Objection No. 176, with leave operating as stay. The court observed that the history of the dispute traced through Misc. App. (JR) No. 22 of 2010 and the Court of Appeal decision of 02.03.2016 (Nyeri C.A Civil Appeal No. 28 of 2015), which quashed the adjudication officer's decision and remitted the objection for rehearing; the rehearing concluded with the decision of 25.11.2016 now under judicial review. The court held that granting the injunction would conflict with the existing stay orders in the judicial review, and that the same parcel and decision were directly in issue there. The plaintiff's application was dismissed with costs, interim orders were vacated, and the defendant's application was allowed with a stay of these proceedings pending the judicial review; no costs on that application.

Key legal issues

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01

Whether a temporary injunction could issue over parcel No. 1249 while the DLASO decision of 25.11.2016 is under challenge in Judicial Review No. 7 of 2017

Holding

The injunction was refused because the parcel is a subject matter of the judicial review in which leave operating as stay had been granted; granting the injunction would conflict with those orders.

Reasoning

The court noted the plaintiff was not a party to the earlier proceedings but the parcel she claims is before the court in Judicial Review No. 7 of 2017, where leave to apply for certiorari and prohibition with stay had been granted on 14.03.17 and directions for hearing already given. Granting the injunction would create conflicting orders over the same parcel, so the application was dismissed.

p. 5
02

Whether these proceedings should be stayed pending the outcome of Judicial Review No. 7 of 2017

Holding

A stay of the suit was granted to await the outcome of the judicial review, which concerns the same parcel and the same decision of 25.11.2016.

Reasoning

The defendant's application was unopposed: no response or submissions were filed by the plaintiff despite directions. The court found the same parcel (No. 1249) and the same decision of 25.11.2016 were directly in issue in the judicial review, and that a stay would avert a conflict of decisions and save judicial time.

p. 5
03

Effect of the plaintiff's failure to file a response or submissions to the defendant's stay application

Holding

The court proceeded to determine the applications on the material on record notwithstanding the absence of a response and submissions.

Reasoning

Although no replying affidavit was filed in respect of the application of 18.7.2017 and no submissions were filed, the court held it could determine both applications on the record, noting the defendant's affidavit in response to the 15.5.2017 application had been expunged for late filing.

p. 4

Legal principles established

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  • Where a subordinate suit's subject matter is covered by a stay of the underlying decision in a pending judicial review before the same court, the injunction sought in the subordinate suit would conflict with those stay orders and the proceedings should await the outcome of the judicial review

Court orders

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  1. 1.The application of 15.5.17 is dismissed with costs to defendant
  2. 2.Any Interim Orders given in respect of the application dated 15.5.2017 are vacated
  3. 3.The application of 18.7.17 is allowed and an order of stay of these proceedings is granted to await the outcome in Judicial Review No. 7 of 2017
  4. 4.No orders as to costs in the application of 18.7.2017

Authorities

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Legislation

  • Land Adjudication ActSection 29

Cases cited (4)

  • Peter Kimandiu Vs. Zaverio Mithika & 4 others
    Nyeri Court of Appeal Civil Appeal No. 28 of 2015
  • Peter Kimandiu vs. Zaverio Mithika & 4 others
    Nyeri Court of Appeal Civil Application No. 45 of 2015
  • Misc App. (J.R) No. 22 of 2010, Meru High Court
  • Judicial Review No. 7 of 2017 (Zaverio Mithika v District Land Adjudication and Settlement Officer, Tigania East/West District)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel No. 1249 Antuamburi Adjudication Section

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, "Esther Kamathi Mwimbi v Zaverio Mithika [2017] KEELC 1014 (KLR)", Case Analysis (2017). Not stated in the judgment (Meru ELC; suit over land parcel No. 1249 Antuamburi Adjudication Section). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1014/eng@2017-11-13

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