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ELCAllowedNot stated in judgment (application dated 12th April, 2016)· [2017] KEELC 3658 (KLR)

Nathan Mkala v Kaviha Kikopi & another [2017] KEELC 3658 (KLR)

Environment and Land Court
3 February 2017
657 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Malindi blocked a family from excavating land a buyer had purchased under customary law, preserving it until ownership is decided at trial.

What this practically means

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Executive summary

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This is a ruling on the Plaintiff's notice of motion dated 12th April, 2016 in which he sought an interlocutory injunction restraining the Defendants, their family members, agents, servants, employees and purported purchasers or lessees from entering into, cultivating, mining or excavating on an unregistered portion of land at Sabaki Village, Malindi, pending the hearing and determination of the suit, with costs to the respondents. The Plaintiff deponed that he purchased the suit property from one Mramba Taura on 5th December, 2009 for Ksh 100,000, that the Defendants are the extended family of the late Mramba Taura, and that the Defendants had begun excavating marrum and construction material which would alter the character of the land. The 1st Respondent acknowledged the sale agreement but maintained that the land, part of approximately 20 acres of unregistered family land, belonged to his immediate family from time immemorial; Mramba Taura, his nephew, had merely been allowed to cultivate it. Mramba Taura's son deponed that the Plaintiff bought three acres with the consent of elders. The court found it undisputed that the land belonged to the Kikopi family and that Mramba Taura was entitled to a portion under Giriama customary law. Holding that the land should not be wasted pending trial and that the Plaintiff, having evidenced his 2009 purchase, would suffer irreparable damage not compensable by damages, the court allowed the application as prayed. Dated, signed and delivered in Malindi on 3rd February, 2017 by O. A. Angote, Judge.

Key legal issues

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01

Entitlement to an interlocutory injunction over unregistered clan land sold under customary law

Holding

The application was allowed because the plaintiff produced evidence of purchase and would suffer irreparable damage not compensable by damages if excavation continued.

Reasoning

It was common ground that the land belonged to the Kikopi family and that the late Mramba Taura, the 1st Defendant's nephew, sold the property or a portion of it to the plaintiff. Though the court could not confirm at the interlocutory stage that the land was what Mramba Taura inherited under Giriama customary law, the land should not be wasted pending trial. The plaintiff's evidence of purchase in 2009 showed irreparable damage not compensable by damages.

p. 2

Legal principles established

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  • Where suit land may be wasted pending determination of ownership, an interlocutory injunction should issue to preserve it where the applicant shows purchase and potential irreparable damage not compensable by damages.

Court orders

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  1. 1.The Application dated 12th April, 2016 allowed as prayed, including an order of injunction restraining the defendants, their family members, agents, servants, employees and purported purchasers or lessees from entering into, cultivating, mining or excavating on the suit property or otherwise interfering with the plaintiff's peaceful possession pending the hearing and determination of the suit
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to grant interim injunctions pending hearing of a land 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, "Nathan Mkala v Kaviha Kikopi & another [2017] KEELC 3658 (KLR)", Case Analysis (2017). Not stated in judgment (application dated 12th April, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3658/eng@2017-02-03

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