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ELCDismissedNotice of Motion dated 6th May 2015 (suit unspecified in judgment)· [2017] KEELC 3127 (KLR)

Levy Victor Wakaba & another v Fred Mokua & another [2017] KEELC 3127 (KLR)

Environment and Land Court
31 March 2017
MGMary M. Gitumbi
966 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to stop a homeowner's construction mid-case because the location dispute could only be settled at a full trial.

What this practically means

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Executive summary

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The 1st Plaintiff, Levy Victor Wakaba, on behalf of the Plaintiffs, moved the court by Notice of Motion dated 6th May 2015 seeking a mandatory injunction directing the 1st Respondent, Fred Mokua, to cease construction on Plot No. P6741 at Kamonde Area, Embakasi, and to vacate it pending trial. The Plaintiffs claimed ownership through purchase from Jane Maingi Musau, evidenced by a Non-Member Certificate of Plot Ownership dated 29th May 2001, and alleged the 1st Defendant's construction constituted trespass. The 1st Defendant opposed the application through Grounds of Opposition and a Replying Affidavit, asserting he had constructed on his own Plot No. V14697, purchased from Antony Githinji Wanjiru on 23rd May 2014 for Kshs. 1,400,000/-, and confirmed by the 2nd Defendant's Surveyor to be a different plot from P6741. The court, citing Airland Tours & Travels Ltd v National Industrial Credit Bank, held that at the interlocutory stage it could not make conclusive findings of fact or law on contradictory affidavit evidence. The central dispute - the actual location of the suit property - required full trial. The court directed that the 1st Defendant remain in occupation of the disputed plot pending the hearing and determination of the suit, dismissed the application, and ordered costs to be in the cause. Judgment was delivered at Nairobi on 31st March 2017 by Mary M. Gitumbi, Judge.

Key legal issues

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01

Whether a mandatory injunction should issue at the interlocutory stage on the basis of contradictory affidavit evidence

Holding

The application was dismissed; the question of which plot the 1st Defendant occupies must be resolved at full trial

Reasoning

The Applicants claim Plot No. P6741 while the 1st Defendant asserts he occupies a different Plot No. V14697 purchased from Antony Githinji Wanjiru. The court found the location of the suit property was the central dispute and could not be authoritatively resolved on disputed affidavit evidence. Following Airland Tours & Travels Ltd v National Industrial Credit Bank, the court declined to make conclusive findings, directed the 1st Defendant to remain in occupation pending trial, and dismissed the application with costs in the cause.

p. 3

Legal principles established

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  • In an interlocutory application, the court is not required to make conclusive or definitive findings of fact or law on contradictory affidavit evidence

Court orders

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  1. 1.The Application is dismissed
  2. 2.The 1st Defendant, who is in occupation of the disputed plot after constructing a residential house thereon, shall remain in occupation pending the hearing and determination of the suit
  3. 3.Costs shall be in the cause

Authorities

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Cases cited (1)

  • Airland Tours & Travels Ltd versus National Industrial Credit Bank
    Milimani High Court Civil Case No. 1234 of 2002
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (interlocutory application in a pending suit)

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, "Levy Victor Wakaba & another v Fred Mokua & another [2017] KEELC 3127 (KLR)", Case Analysis (2017). Notice of Motion dated 6th May 2015 (suit unspecified in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3127/eng@2017-03-31

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