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ELCAllowedApplication dated 19th September, 2017 (main suit not stated in extract)· [2018] KEELC 1130 (KLR)

Beth Josiah Nyamai v Kalekye Mutiso & 3 others [2018] KEELC 1130 (KLR)

Environment and Land Court
26 October 2018
668 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, registered proprietor of L.R. 355/25 West of Machakos Municipality, sought an interim injunction restraining the Defendants from invading, constructing on, or disposing of Plot No. 1 forming part of the suit land pending hearing of the main suit. She deponed that the 1st to 3rd Defendants had sold a portion to the 4th Defendant without her consent or that of the estate's beneficiaries. The Defendants, members of the same family, countered that the land belonged to their late grandfather Nyamai Musyimi Ngave and the entire family; that their late grandmother was registered proprietor and the Plaintiff's late husband held the title in trust for the family; that they had lived on the land for many years; and that the Plaintiff fraudulently obtained letters of administration to disinherit them. The court noted two certificates of confirmation of grant in Machakos Succession Causes Nos. 798 of 2013 (estate of the Plaintiff's late husband) and 838 of 2013 (estate of the mother-in-law), both directing registration of the suit land in the Plaintiff's name, and that the Defendants had never challenged those orders. The court found the Plaintiff had established a prima facie case with chances of success and that, as the Defendants had produced no evidence of occupation while the Plaintiff showed photographs of buildings, the Plaintiff would suffer irreparable damage absent an injunction. The application dated 19th September 2017 was allowed as prayed, with costs to the Defendants.

Key legal issues

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01

Whether the Plaintiff established a prima facie case

Holding

Yes - the Succession Court's certificate of confirmation of grant decreed registration of the suit land in the Plaintiff's favour, and those orders remain unchallenged and unvaried.

Reasoning

The court observed that a Certificate of Confirmation of Grant issued in Machakos Succession Cause No. 798 of 2013 required the Plaintiff to be registered as proprietor of the suit land in trust for herself and other beneficiaries, and a second certificate in Cause No. 838 of 2013 directed registration wholly in her name. The Defendants never challenged either order, so until they are varied the Plaintiff has a prima facie case.

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02

Whether irreparable damage would ensue without an injunction

Holding

Yes - the Plaintiff, by photographs, showed she is in occupation, while the Defendants produced no evidence of occupation.

Reasoning

The Plaintiff annexed photographs of buildings demonstrating that she is the one in occupation of the suit land. The Defendants, who alleged they had lived on the land for many years, produced no evidence supporting that claim. The balance therefore tipped in the Plaintiff's favour, making her the party likely to suffer irreparable damage absent injunctive orders.

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Legal principles established

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  • A party whose right to registration of land is decreed in a certificate of confirmation of grant has a prima facie case with chances of success so long as those orders remain unvaried.
  • A party who alleges long occupation of land must produce evidence to substantiate that occupation.

Court orders

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  1. 1.An interim order of injunction restraining the Defendants/Respondents, their agents, servants and employees from invading, constructing structures by cutting trees, or disposing of the parcel of land known as Plot No. 1, part of L.R. 355/25 West of Machakos Municipality situated at Katheka Kai pending hearing and determination of the main suit
  2. 2.The costs of the application to be borne by the Respondents/Defendants
Jurisdiction invoked
Inherent jurisdiction to grant injunctive relief pending hearing and determination of a land suit (Environment and Land Court); references Machakos Succession Cause No. 798 of 2013 and No. 838 of 2013

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, "Beth Josiah Nyamai v Kalekye Mutiso & 3 others [2018] KEELC 1130 (KLR)", Case Analysis (2018). Application dated 19th September, 2017 (main suit not stated in extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1130/eng@2018-10-26

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