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ELCAllowedNot stated in judgment· [2018] KEELC 435 (KLR)

Margaret Nzilani Musau v Joseph Mbau Kioko [2018] KEELC 435 (KLR)

Environment and Land Court
7 December 2018
OAO. A. Angote
776 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner in possession won an injunction blocking the registered titleholder from evicting her or dealing with the land until trial decides ownership.

What this practically means

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Executive summary

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This was an interlocutory Notice of Motion dated 4th July 2017 in which the Plaintiff sought an injunction restraining the Defendant from entering, developing, selling, charging or transferring land parcel Mbiuni/Makiliva/387, or interfering with her peaceful occupation, pending the hearing and determination of the suit, plus costs. The Plaintiff deponed that she had occupied the land exclusively since 1970 after purchase; that after losing before the Mwala District Land Tribunal in Tribunal Case No. 20 of 2001 she appealed to the Provincial Land Appeal Committee in Appeal No. 161 of 2001, which awarded her the land, and the Defendant never appealed to the High Court. The Defendant, the registered proprietor since 1980, countered that he purchased the land from his late father in 1979, that the Plaintiff was a trespasser ordered to cease trespass and be evicted in Machakos CMCC No. 108 of 2001, that he sold the land to a third party in 2001, that the Appellate Committee proceedings were a nullity, and that the suit was res judicata. The court noted the Land Certificate showing registration in the Defendant's favour, the Appellate Committee's finding for the Plaintiff, and the unexplained order of 14th November 2006 in CMCC No. 108 of 2001, holding that proprietorship could only be determined after hearing both sides. Finding the Plaintiff in possession and likely to suffer irreparable damage if evicted, with the balance of convenience in her favour, the court allowed the application as prayed with costs to the Plaintiff.

Key legal issues

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01

Interlocutory injunction over registered land in possession of the plaintiff

Holding

Injunction granted because the plaintiff is in possession, would suffer irreparable damage if evicted, and the balance of convenience favours her

Reasoning

The Land Certificate shows registration in the Defendant's favour since 1980, but the Appellate Committee decreed the land to the Plaintiff and the Defendant has not denied her possession. Given the conflicting orders between the Appellate Committee decision and the Machakos CMCC No. 108 of 2001 order, proprietorship can only be determined after a full hearing; possession should therefore be preserved through an injunction pending trial.

p. 2
02

Conflicting prior proceedings and the res judicata objection

Holding

The court could not resolve proprietorship or the res judicata objection on the papers; competing outcomes of the Tribunal, Appellate Committee and CMCC proceedings required a full trial

Reasoning

The Defendant argued the Provincial Land Appeal Tribunal proceedings were a nullity and the suit res judicata. The court found it unclear how the order of 14th November 2006 in Machakos CMCC No. 108 of 2001 was issued in view of the Appellate Committee decision awarding the land to the Plaintiff, and declined to make final findings on proprietorship without hearing both sides.

p. 2

Legal principles established

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  • A party in possession of land faced with eviction will suffer irreparable damage and the balance of convenience lies in preserving the possession pending trial

Court orders

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  1. 1.The Notice of Motion dated 4th July, 2017 allowed as prayed
  2. 2.Injunction restraining the Defendant, his agents, servants and contractors from entering land parcel Mbiuni/Makiliva/387, commencing any works or developments thereon, selling, charging, transferring or dealing with it, or interfering with the Plaintiff's peaceful occupation and use thereof until the suit is heard and determined
  3. 3.Costs of the application to be paid by the Defendant/Respondent
Jurisdiction invoked
Not stated in the judgment

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, "Margaret Nzilani Musau v Joseph Mbau Kioko [2018] KEELC 435 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/435/eng@2018-12-07

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