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ELCDismissedNot stated in the judgment· [2018] KEELC 4607 (KLR)

Mathew Musyimi Nzube & 2 others v Joseph Mwanthi Nyeze 5 others [2018] KEELC 4607 (KLR)

Environment and Land Court
5 February 2018
1,243 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 applicants, by notice of motion dated 5th October 2017 under Order 40 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, sections 1A, 1B and 3A of the Civil Procedure Act, section 13(7)(a) of the Environment and Land Court Act and the Land Adjudication Act, sought a temporary injunction restraining the 5th defendant from printing title deeds in respect of Plot Nos. 1415, 1295, 1292, 1283 and 3972 Kisekini Adjudication Section pending determination of the main suit. The first, third and fourth respondents opposed through replying affidavits, contending that the adjudication process was complete, that Plot 3972 arose from subdivision of Plot 1283 after successful objection proceedings, that the applicants had no demonstrated interest in their parcels, and that the applicants' remedy was an appeal to the Minister under section 29 of the Land Adjudication Act. The court applied the Giella v Cassman Brown principles. It found no prima facie case, holding that dissatisfied parties should have appealed to the Minister; found no irreparable injury, as no interest in the respondents' parcels was deciphered; and found the balance of convenience favoured the respondents in possession and occupation. The court dismissed the application with costs to the first and fourth respondents on 5th February 2018.

Key legal issues

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01

Prima facie case with probability of success

Holding

The applicants failed to demonstrate a prima facie case; the adjudication process was complete and their remedy lay in an appeal to the Minister, not in court

Reasoning

The applicants sought to stop printing of title deeds, which implies the adjudication process was complete. Being dissatisfied with the objection proceedings, they ought to have appealed to the Minister under section 29 of the Land Adjudication Act before approaching the court. No tangible evidence showed the respondents secretly carved out their parcels, so no prima facie case was established.

p. 2
02

Irreparable injury not compensable by damages

Holding

The second Giella principle was not proved

Reasoning

The court found nothing in the supporting affidavit showing any interest the applicants had in the respondents' parcels of land. Without a demonstrated interest, the applicants could not show irreparable injury that damages would not adequately compensate; the adjudication section records already reflected the respondents' ownership.

p. 2
03

Balance of convenience

Holding

Balance of convenience tilts in favour of the respondents who have been in possession and occupation

Reasoning

The applicants failed in the objection proceedings and failed to appeal against the decision. The respondents have been in possession and occupation of their respective portions of land, so granting an injunction would inconvenience the party with established possession.

p. 2

Legal principles established

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  • Where statute provides an appeal mechanism (to the Minister under section 29 of the Land Adjudication Act), a dissatisfied party in adjudication proceedings must exhaust that remedy before resorting to court

Court orders

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  1. 1.The application dated 5th October 2017 is dismissed with costs to the first and the fourth respondents

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rules 1 and 2; Order 51 Rule 1
  • Civil Procedure Act (Cap 21)Sections 1A, 1B and 3A
  • Environment and Land Court Act (Cap 12A)Section 13(7)(a)
  • Land Adjudication Act (Cap 284)Section 29(1)(a) and (b)

Cases cited (5)

  • Giella vs Cassman Brown & Company Ltd
    [1973] EA 358
  • Richard Mecha Kibagendi Vs John Mongare Nyarondia
    [2014] eKLR
  • Mrao Vs First American Bank of Kenya & 2 others
    [2003] eKLR 125
  • Sun Palm Limited & 4 others V Pierre Loporte Ltd
    Nairobi Civil Application Number 242 of 1997
  • Jonson Kyai Ndoo Vs Good News Church of Africa & 3 others
    [2013] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21); Order 40 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Section 13(7)(a) of the Environment and Land Court Act (Cap 12A); Land Adjudication Act (Cap 284)

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, "Mathew Musyimi Nzube & 2 others v Joseph Mwanthi Nyeze 5 others [2018] KEELC 4607 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4607/eng@2018-02-05

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