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ELCOtherNotice of Motion dated 31st October 2017 (in ELC suit, Kajiado)· [2018] KEELC 3215 (KLR)

Kone Ole Matipei v Andrew Muema & 2 others [2018] KEELC 3215 (KLR)

Environment and Land Court
22 May 2018
COChristine Ochieng
2,914 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner's title was not enough to evict long-time occupants at an early stage; the court kept the status quo until full trial.

What this practically means

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Executive summary

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The Plaintiff, Kone Ole Matipei, sought interlocutory injunctive relief by Notice of Motion dated 31st October 2017 against three Defendants he alleged had encroached upon, cultivated and destroyed his parcel, LR Kajiado/Kaputiei-Central/2525, of which he was the registered proprietor having purchased 25 acres for value from Allan Mpotela Koyan in 2011. The Defendants opposed, each claiming to have purchased their respective portions (7, 4 and 5 acres) from the same vendor between 1998 and 2008, to have taken possession and developed them, and contending that the Plaintiff's title was fraudulently obtained, that they were in possession, and that an injunction at interlocutory stage would evict them before trial. They also cited a pending appeal (Machakos ELC Appeal No. 35 of 2015) over the parent parcel and a decree in Kajiado PMCCC No. 86 of 2011. The court framed a single issue: whether the Plaintiff was entitled to temporary injunction pending the suit. Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, the court accepted the Plaintiff's registration under sections 24 and 25 of the Land Registration Act but noted the Defendants' earlier agreements, uncontroverted photographs of occupation and development, the pending appeal over the parent parcel, and the vendor's non-joinder. Following Simon Kimemia Muthondu v Moses Mugo Maringa, the court declined the injunction, ordered that the status quo be maintained pending the hearing and determination of the suit, with costs in the cause, and urged compliance with Order 11.

Key legal issues

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01

Whether the Plaintiff, as registered proprietor, established a prima facie case with a probability of success to warrant a temporary injunction

Holding

No. Although registered proprietor protected under sections 24 and 25 of the Land Registration Act, the Defendants were in occupation from before the Plaintiff's purchase, and a pending appeal over the parent parcel made the injunction inappropriate at interlocutory stage.

Reasoning

The Plaintiff was registered on 2nd May 2012 whereas the Defendants' purchase agreements with the vendor Allan Mpotela ranged from 1998 to 2008, and they took possession and built homes as shown in uncontroverted photographs. The vendor confirmed to the Plaintiff that the Defendants entered pursuant to a court decree. With a pending appeal over the parent parcel KAJIADO/KAPUTIEI CENTRAL/124 and the vendor not enjoined, the court found the issues required oral evidence and followed the Kimemia v Maringa approach of maintaining the status quo.

p. 3
02

Whether the Giella v Cassman Brown principles for interim injunctions were satisfied

Holding

Not satisfied; the balance of status quo favoured the Defendants in possession, so the application was declined.

Reasoning

Applying Giella, the court interrogated whether a prima facie case existed. Registration alone, coupled with Defendants' prior and continued possession and a pending appeal over the parent parcel, did not demonstrate an apparently infringed right warranting interlocutory eviction. Following Simon Kimemia Muthondu v Moses Mugo Maringa, the lower risk of injustice lay in preserving the status quo until trial rather than granting an injunction with evictive effect.

p. 3

Legal principles established

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  • A prima facie case is one in which, on the material presented, a court concludes a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party
  • Temporary injunction should not be granted at an interlocutory stage where it would have the effect of evicting a party in long occupation; status quo should be maintained pending trial

Court orders

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  1. 1.The obtaining status quo be maintained pending the hearing and determination of the suit
  2. 2.Costs in the cause
  3. 3.Parties to comply with Order 11 and set the suit down for hearing as soon as possible

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1, 2 & 4
  • Civil Procedure ActSections 1A, 1B, 3 & 3A
  • Registered Land ActSections 28 and 159
  • Land Registration ActSections 24 and 25

Cases cited (6)

  • Giella Vs Cassman Brown & Co. Ltd
    (1973) EA 358
  • Machakos High Court Succession Cause No. 564 of 2010 – Estate of Mututua Sirinket Sapokenya (deceased)
  • Nganda Kalandi Vs. Timothy Mutinda Nzioka
    (2012) eKLR
  • Mohammed K. Abdulaziz & 2 others Vs. The Commissioner of Lands being sued through the Attorney General & 2 Others
  • MRAO VS FIRST AMERICAN BANK OF KENYA LTD & TWO OTHERS
    C.A CIVIL APPEAL No. 39 of 2002 (2003) K.L.R 125
  • Simon Kimemia Muthondu v Moses Mugo Maringa
    [2017] eKLR
Jurisdiction invoked
Order 40 rules 1, 2 & 4 of the Civil Procedure Rules; Sections 1A, 1B, 3 & 3A of the Civil Procedure Act; Sections 28 and 159 of the Registered Land Act

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, "Kone Ole Matipei v Andrew Muema & 2 others [2018] KEELC 3215 (KLR)", Case Analysis (2018). Notice of Motion dated 31st October 2017 (in ELC suit, Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3215/eng@2018-05-22

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