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ELCDismissedNot stated in judgment (Machakos ELC; Application dated 27th October 2016)· [2018] KEELC 3538 (KLR)

Robert Kilonzo Muange & another v Joel Nganda [2018] KEELC 3538 (KLR)

Environment and Land Court
20 April 2018
OAO. A. Angote
641 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 Plaintiffs, suing as administrators of the Estate of Mbuli Mutua, moved the Environment and Land Court at Machakos by an application dated 27th October 2016 seeking an interlocutory injunction restraining the Defendant from trespassing on, tampering with or occupying land parcel Machakos/Katheka-Kai Block 4/66, and a declaration that the Defendant's actions were malicious, unjustifiable and unlawful. They asserted that the land had belonged to their late grandmother, that they had obtained letters of administration and a confirmed grant, and that they had transferred the land to Ruptex Co-operative Savings and Credit Sacco, which they described as the bona fide owner. The Defendant countered that he was the proprietor of the suit land and a beneficiary of the same estate; that he had litigated with the Plaintiffs' father before the Machakos Lands Disputes Tribunal in Case No. 163 of 2001, whose award was confirmed in CMCC No. 8 of 2003; that a judicial review application by the 1st Plaintiff seeking to quash the Tribunal's decision was dismissed; and that he had filed summons in Machakos High Court Succession Cause No. 237 of 2002 for revocation of the grant. The court found the suit incompetent because the Plaintiffs admitted selling the land to Ruptex, which was not joined as a party. It further held that, in light of prior decisions confirming the Defendant's ownership and the Society's recognition of him, the Plaintiffs had not established a prima facie case with chances of success. The application was dismissed with costs.

Key legal issues

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01

Non-joinder of the registered/current owner (Ruptex Co-operative Savings and Credit Sacco)

Holding

The suit and application are incompetent because the Plaintiffs admitted selling the suit land to Ruptex, which is not a party to the suit.

Reasoning

The Plaintiffs deponed that they transferred the suit land to Ruptex Co-operative Savings and Credit Sacco, which they described as the bona fide owners. Ruptex was nevertheless not joined as a plaintiff and no explanation was given for its absence. The court held that a suit over land whose ownership had been conceded to a stranger could not be competently prosecuted without that stranger.

p. 2
02

Whether a prima facie case with chances of success was established for an interlocutory injunction

Holding

No prima facie case was established; prior decisions of the court (Tribunal Case No. 163 of 2001, confirmed in CMCC No. 8 of 2003 and JR No. 22 of 2006) confirmed the Defendant's ownership, and the Society recognized the Defendant as owner.

Reasoning

The Defendant had litigated over the suit land with the Plaintiffs' father before the Machakos Lands Disputes Tribunal in Case No. 163 of 2001; the award was confirmed in CMCC No. 8 of 2003 and a judicial review challenge (JR No. 22 of 2006) was dismissed. The Society recognized the Defendant as owner. Against these unchallenged prior decisions, the Plaintiffs could not show a prima facie case warranting the restraint sought.

p. 2

Legal principles established

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  • A plaintiff who has admitted selling the suit land to a third party cannot prosecute a suit over that land without joining the current owner as a party

Court orders

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  1. 1.Dismissal of the Application dated 27th October, 2016
  2. 2.Costs of the application to the Defendant
Jurisdiction invoked
Not expressly stated; first-instance Environment and Land Court jurisdiction over land parcel Machakos/Katheka-Kai Block 4/66

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Robert Kilonzo Muange & another v Joel Nganda [2018] KEELC 3538 (KLR)", Case Analysis (2018). Not stated in judgment (Machakos ELC; Application dated 27th October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3538/eng@2018-04-20

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