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ELCDismissedApplication dated 21st June, 2018 (Machakos ELC suit)· [2018] KEELC 408 (KLR)
Frederick Musau Mwaniki v Bosco Nthenge Nzioki [2018] KEELC 408 (KLR)
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#What this practically means
#Executive summary
#In an application dated 21st June, 2018 in a Machakos Environment and Land Court suit, the Plaintiff sought a temporary injunction restraining the Defendant, his relatives, servants and agents from demolishing the Plaintiff's building on Plot No. 757A, part of Plot No. 757 within Katelembo Athiani Muputi Farming and Ranching Co-operative Society Limited, and from dealing with the suit premises pending the hearing of the main suit, with execution by the O.C.S Machakos, plus costs. The Plaintiff claimed he bought the plot from Manthei Muema, a Society member, and had developed it after obtaining change of user, and that the Defendant trespassed on 21st June, 2018 and intended to demolish his permanent house. The Defendant deponed that he purchased Plot No. 757 from Peter Kivanga Mutiso, member No. 562, took possession in 2015, and sued Wayua Muema in Machakos ELC No. 204 of 2016, obtaining an ex-parte judgment on 23rd February, 2018 ordering eviction; the demolition was carried out pursuant to that court order and execution was complete. Angote J held that the suit land was a portion of the subject matter of ELC No. 204 of 2016; the Plaintiff should have applied in that suit to set aside or stay its judgment, and issuing an injunction in the face of those existing orders would be contradictory and a mockery of justice. The photographs showed the impugned actions were completed pursuant to a valid court order. The application was dismissed on 14th December, 2018 with no order as to costs.
Key legal issues
#01
Whether a temporary injunction could issue over land already subject to orders in Machakos ELC No. 204 of 2016
Holding
No. The existence of the prior judgment and completed eviction orders made an injunction contradictory and improper; the Plaintiff's remedy lay in the prior suit.
Reasoning
The suit land was a portion of the subject matter of ELC No. 204 of 2016, in which the court ordered eviction of Wayua Muema. By the time the Plaintiff purportedly purchased Plot 757A, that suit was pending. The demolition was executed under valid court orders and was already complete, so an injunction would be futile and would contradict the earlier judgment. The correct course was to apply in the prior suit to set aside or stay its judgment.
p. 2
Legal principles established
#- A party claiming an interest in land that was the subject of a prior court order should move that court to set aside or stay the judgment rather than seeking inconsistent relief in a fresh suit
- An injunction will not issue to restrain acts already completed pursuant to a valid court order
Court orders
#- 1.The Application dated 21st June, 2018 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (interlocutory injunction application in the main suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Frederick Musau Mwaniki v Bosco Nthenge Nzioki [2018] KEELC 408 (KLR)", Case Analysis (2018). Application dated 21st June, 2018 (Machakos ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/408/eng@2018-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.