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ELCDismissedELC Suit dated 26th May 2016· [2017] KEELC 2506 (KLR)

Rebecca Mwakisha v County Government of Kwale & 2 others [2017] KEELC 2506 (KLR)

Environment and Land Court
26 June 2017
1,655 words in judgment
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The bottom line

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A Kenyan widow lost her bid to freeze railway compensation payments because the money had already been paid and the court cannot reverse completed events.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of Stephen Mwakisha (deceased), filed suit on 26th May 2016 with a notice of motion under sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, seeking a temporary injunction restraining the 3rd defendant from releasing Standard Gauge Railway compensation payments to the 2nd defendant, orders stopping construction on the suit land, and a declaration that she is the beneficial, legal and rightful owner of 1000 unsurveyed acres in Taru Location. She claimed the land was allocated to her husband in 1976. The 2nd defendant claimed purchasers' rights from 1988; the 3rd defendant (Kenya Railways Corporation) deposed that compensation was paid on 6th January 2015 following acquisition through the National Land Commission, and raised a preliminary objection on jurisdiction under sections 112, 118-120 of the Land Act. The Court held the objection misplaced because the pleaded dispute is one of land ownership, not compensation, and the ELC is established to resolve use, occupation and ownership disputes. On the merits, applying Giella v Cassman Brown, the Court found no prima facie case warranting relief, that the compensation having already been paid the injunction could not undo a completed event, that no evidence showed the 2nd defendant was constructing structures, and that damages would be an adequate remedy with the balance of convenience favouring the 3rd respondent. The application was dismissed with costs in the cause.

Key legal issues

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01

Jurisdiction of the ELC vis-à-vis the National Land Commission's statutory compensation inquiry

Holding

The preliminary objection was misplaced; the dispute as pleaded is a claim over ownership of land, with acquisition only incidental, so the ELC has jurisdiction.

Reasoning

The sections of the Land Act cited (112, 118-120) concern compensation for compulsorily acquired land. The plaintiff did not accuse the National Land Commission of conferring ownership; she pleaded that the 1st defendant unprocedurally conferred ownership on the 2nd defendant. Her claim is therefore a land ownership dispute within the ELC's mandate under Article 162(2)(b) and section 13(2) of the ELC Act, and the objection failed.

p. 3
02

Whether a temporary injunction should issue to restrain release of compensation already paid

Holding

No, the injunction is sought in vain because payment was made before suit was filed.

Reasoning

Under Order 40 rule 1 injunctive orders preserve property in danger of being wasted, damaged or alienated. Here the 3rd respondent had already paid compensation to the 2nd defendant on 6th January 2015, more than a year before suit. Injunctive relief preserves the status quo; it cannot reverse completed events, so prayers 5 and 6 served no purpose.

p. 3
03

Whether the applicant satisfied the Giella v Cassman Brown principles

Holding

The applicant failed to establish irreparable harm and the balance of convenience favoured the 3rd respondent continuing its works.

Reasoning

Although the applicant annexed documents showing allocation of the land to her husband in 1976, the 2nd defendant claims purchasers' rights from 1988 and has already been compensated. The applicant did not identify any irreparable loss; damages would be an adequate remedy given the 3rd respondent's resources, so the balance of convenience tilted toward continuation of the railway works.

p. 3

Legal principles established

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  • A temporary injunction cannot undo an event which has already taken place, such as a completed compensation payment.
  • The Environment and Land Court is properly seized of disputes over ownership and occupation of land notwithstanding that compulsory acquisition forms part of the factual background.
  • A court cannot issue an interlocutory declaration of ownership, as that would pre-empt the trial.

Court orders

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  1. 1.The notice of motion application is dismissed
  2. 2.Costs be in the cause

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B & 3A
  • Civil Procedure RulesOrder 40; Order 40 rule 1
  • Land Actsections 112, 118, 119 & 120
  • Constitution of KenyaArticle 162(2)(b)
  • Environment & Land Court Actsection 13(2)
  • National Land Commission ActCap 50

Cases cited (5)

  • Mukisa Biscuit Co Ltd vs West End Distributors Ltd
    (1969) E A 696
  • Mutanga Tea & Coffee Co Ltd vs Shikara Ltd
  • Municipal Council of Mombasa
    C. A No 84 of 2014
  • Bharat Petroleum Corporation vs Harochand Sachdeva
    Air 2003
  • Giella vs Cassman Brown
Jurisdiction invoked
Article 162(2)(b) of the Constitution and section 13(2) of the Environment & Land Court Act

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, "Rebecca Mwakisha v County Government of Kwale & 2 others [2017] KEELC 2506 (KLR)", Case Analysis (2017). ELC Suit dated 26th May 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2506/eng@2017-06-29

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