Masika Mutie v Kanyiva Nzungi & 4 others [2018] KEELC 179 (KLR)
The bottom line
#The Makueni Land Court refused to freeze compensation for land taken for the Thwake Dam because the claimant offered no proof his old case was still alive.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to institute judicial review operating as stay justified restraining compensation payments
No - the Applicant failed to demonstrate that he filed the substantive judicial review motion within the 21 days allowed, and gave no evidence of the status of the proceedings
The court noted that although the Applicant obtained leave on 8th July 2004 which operated as stay, he did not explain whether he filed the substantive motion within 21 days as directed. Mere assertion that the proceedings remain undetermined, without evidence of their status, could not found injunctive relief over compensation for the suit property.
Whether the first to third Respondents are entitled to receive compensation
Yes - by virtue of the letters of administration (including the limited grant ad colligenda bona), the Respondents are entitled to receive compensation on behalf of the estate and on their own behalf
The Applicant did not rebut that title was issued to Kanyiva Nzungi, now deceased, and the Respondents legally obtained letters of administration in Makueni Succession Cause 107/16 after the Applicant unsuccessfully challenged the limited grant. They are therefore the persons entitled to compensation from the acquisition for the Thwake Multipurpose Dam.
Whether injunctive orders could issue against the fourth Respondent
No - the fourth Respondent does not hold any compensation funds for the Thwake project and this deposition was not rebutted
The fourth Respondent's CEO deposed that it does not hold money for settlement and compensation related to the Thwake Multipurpose Dam Project. The Applicant did not rebut this, and orders against a party unable to comply would be superfluous and nugatory.
Legal principles established
#- A party relying on pending judicial review proceedings and a stay order must proffer evidence on the status of those proceedings; it is not enough merely to assert that they are undetermined.
- Injunctive orders ought not to issue against a party that, despite willingness, is unable to comply because it does not hold the relevant funds.
Court orders
#- 1.The Plaintiff's/Applicant's amended notice of motion application dated 24th April 2017 is dismissed
- 2.Costs of the application awarded to the first to third respondents
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act, Orders 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masika Mutie v Kanyiva Nzungi & 4 others [2018] KEELC 179 (KLR)", Case Analysis (2018). Makueni ELC (application dated 24th April 2017 in the pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/179/eng@2018-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.