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ELCOtherNotice of Motion dated 9th February 2017 in ELC Suit (Machakos)· [2018] KEELC 730 (KLR)

Kelvin Nzioki & 53 others v Export Processing Zone Authority, Athi River & another [2018] KEELC 730 (KLR)

Environment and Land Court

16 November 2018

OAO. A. Angote

1,815 words in judgment

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The bottom line

A Kenyan court refused to hand either side a victory, freezing the disputed Mavoko land exactly as it is until trial decides who owns it.

What this practically means

Executive summary

The 54 Plaintiffs moved the Environment and Land Court at Machakos by Notice of Motion dated 9th February 2017 seeking a temporary injunction restraining the Defendants from evicting them, demolishing houses, selling, charging, transferring or interfering with plots they claimed within a settlement scheme known as KMC Phase III in Mavoko, Machakos County, pending the hearing of the suit, with police supervision of compliance. The Plaintiffs deponed to occupation since 1997, development including schools, and allocation by the then Municipal Council of Mavoko in 2005 with temporary letters of allotment issued in 2007. The 1st Defendant asserted registered title to L.R. No. 18474 and denied the existence of the settlement scheme; the 2nd Defendant claimed title to L.R. No. 10281 by Grant I.R. 20302, alleged the allotment letters were forgeries, and questioned the joinder of the County Government of Machakos. The court found the Plaintiffs had produced allocation documents, sub-division schemes and evidence of development, and that the Defendants had not shown their parcels were different from the claimed plots, while the legality of both sides' documents could only be ascertained at trial. Declining a conventional injunction, the court ordered maintenance of the prevailing status quo - no alienation, transfer, development, new structures or fencing by either party - pending the hearing and determination of the suit, with each party bearing its own costs. The ruling is interlocutory; the substantive claim remains for trial.

Key legal issues

Prima facie case for temporary injunction

Holding

The Plaintiffs produced documents showing allocation of plots and the Defendants' Grants' origins required verification; a full injunction was not warranted, but preservation of the status quo was

Reasoning

The court noted the Plaintiffs produced allocation documents, sub-division schemes and photographs of developments, while the Defendants held Grants whose legality was untested. Given the uncertainty on both sides, an injunction on the Giella triad was not granted; instead the land had to be preserved in its present state pending trial.

p. 3

Identification of the suit land

Holding

The Defendants' argument that the Plaintiffs had not identified specific properties was undermined by the schedule of plot numbers and sub-division schemes, and by the 1st Defendant's admission of four claimants in possession

Reasoning

The schedule attached to the Supporting Affidavit particularized each of the 54 Plaintiffs' plot numbers, and sub-division schemes showed 280 and 554 portions on L.R. No. 10281 and L.R. No. 18474/217 respectively. There was also no evidence that the Defendants' parcels differed from the claimed plots.

p. 2

Legal principles established

Where a claimant has produced documents supporting allocation and the origin of the registered proprietor's Grants is unascertained, the prudent interim measure is preservation of the status quo rather than an injunction in the parties' favour
The authenticity of documents underlying competing land claims and the legality of Grants are matters to be determined at trial

Court orders

1.The prevailing status quo to be maintained pending the hearing and determination of the suit - neither the Plaintiffs nor the Defendants to alienate, transfer, develop or put up any new structure or fence on the suit land
2.Each party to bear his/her/its own costs

Jurisdiction invoked: Original civil jurisdiction of the Environment and Land Court over land disputes within Machakos County

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kelvin Nzioki & 53 others v Export Processing Zone Authority, Athi River & another [2018] KEELC 730 (KLR)", Case Analysis (2018). Notice of Motion dated 9th February 2017 in ELC Suit (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/730/eng@2018-11-16

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