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ELCPartially AllowedApplication dated 8th July 2016 (suit over plot Msa/West/2557)· [2017] KEELC 3244 (KLR)

Patrick Mutia Malombe & 2 others v Peter Mukora Chege & another [2017] KEELC 3244 (KLR)

Environment and Land Court
11 April 2017
982 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court stopped landowners from evicting a church by demolition, confirming that Kenyan land disputes must be resolved through court orders, not self-help.

What this practically means

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Executive summary

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This was an interlocutory application dated 8th July 2016 in which the applicant, a church/ministry occupying a portion of plot Msa/West/2557 in Mombasa, sought an injunction restraining the defendants from entering, evicting, demolishing or interfering with its occupation and use of the plot, plus costs. The applicant claimed it purchased the portion from Salome Gathoni Chege, developed it, and that on 6th July 2016 the defendants demolished its structures without notice or court order. The 1st respondent, Peter Mukora Chege, opposed the application, deposing that he was co-administrator of the estate of Daniel Chege, the registered owner; that the applicant's presence was discovered in 2009 and a demand to vacate issued; and that the lease/sale by Salome Gathoni, a co-administrator acting alone, was null and void. In response, the applicant produced handwritten payment notes and its previous advocate's correspondence. The court found the applicant in possession, its initial entry through a lease, and that the respondents, aware of the applicant's presence since 2009, had never served notice or obtained a court order to vacate, yet demolished the structures on 6th July 2016 - an unlawful self-help process justifying the injunction. The court further held that although the sale agreement might be void as a unilateral act of one of joint administrators, the respondents had not sought its nullification and so could not brand the applicant a trespasser; a prima facie case was therefore established. The Ghanaian case of Koto Kamwe Amoni vs Gello & Company Ltd, relied on by the respondents, was distinguished as having been decided after a hearing on merits. The application was allowed in terms of prayer (c), confined to the portion measuring 156 feet by 41 feet occupied by the applicant, with the respondents free to deal with the remainder, and costs of the application were made to abide the outcome of the suit.

Key legal issues

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01

Whether the demolition of the applicant's structures without notice or court order was lawful

Holding

The respondents' self-help demolition was unlawful and entitled the applicant to the injunction sought

Reasoning

The respondents knew of the applicant's presence since 2009 and had engaged in correspondence, yet descended on the premises on 6th July 2016 without any notice or court order to vacate. The court held that forcible removal without legal process was an unlawful process to evict, obliging it to grant the injunction.

p. 2
02

Whether the applicant established a prima facie case despite the alleged nullity of the sale agreement

Holding

A prima facie case was established; the alleged nullity of the agreement by a single administrator could not be relied upon without the court nullifying it

Reasoning

The applicant annexed payment documents and a sale agreement dated 31st October 2011. Although the respondents contended the agreement by a single co-administrator was null and void, they had not sought its nullification. Until that was done, the applicant could not be declared a trespasser, so a prima facie case existed.

p. 2
03

Whether the Ghanaian authority Koto Kamwe Amoni vs Gello & Company Ltd applied

Holding

The authority was distinguished as it was decided after a full hearing on merits, unlike this interlocutory application

Reasoning

The respondents relied on the Ghanaian decision to argue against the applicant. The court noted that decision was reached after the case was heard on merits and therefore did not govern the interlocutory stage, where only a prima facie case need be shown.

p. 2

Legal principles established

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  • Self-help eviction of a party in possession, without notice or court order, is unlawful and justifies injunctive relief
  • A party alleging that an agreement by one of joint administrators is void must seek its nullification before claiming the other party is a trespasser

Court orders

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  1. 1.An injunction restraining the defendants from entering, evicting, demolishing or interfering with the plaintiff's occupation and use of the portion of plot Msa/West/2557 occupied by the applicant measuring 156 feet by 41 feet
  2. 2.The order restricted to the portion occupied by the applicant; respondents at liberty to deal with the remainder of the plot
  3. 3.Costs of the application to abide the outcome of the suit

Authorities

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Cases cited (1)

  • Koto Kamwe Amoni vs Gello & Company Ltd
Jurisdiction invoked
Interlocutory jurisdiction of the Environment and Land Court over the suit plot Msa/West/2557

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, "Patrick Mutia Malombe & 2 others v Peter Mukora Chege & another [2017] KEELC 3244 (KLR)", Case Analysis (2017). Application dated 8th July 2016 (suit over plot Msa/West/2557). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3244/eng@2017-04-11

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