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ELCAllowedApplication dated 12th January, 2017 (pending main suit)· [2018] KEELC 4680 (KLR)

Scolastica Mueni Nzomo & another v Francis Mwanzia & 3 others [2018] KEELC 4680 (KLR)

Environment and Land Court
26 January 2018
OAO.A. ANGOTE
710 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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This was a ruling on the Plaintiffs' application dated 12th January 2017 seeking an interim injunction to restrain the 1st and 2nd Defendants from holding themselves out as registered owners, entering, trespassing, cultivating or interfering with the Plaintiffs' possession of Plot Nos. 918 and 919 Kivaa/Kyondoni pending the hearing of the main suit. The Plaintiffs, registered proprietors of Plot 65 Kivaa/Kyondoni, relied on proceedings before the Kyondoni Land Adjudication Committee in a dispute with Ruth Ndindi Ngila over Plots 65 and 66, in which the Committee found the plots belonged to the Plaintiffs and produced a sketch plan showing plot 65 stretching to Tana River with no plots 918 or 919. The Arbitration Board dismissed Ndindi's appeal under the Land Adjudication Act. An official search revealed the Defendants had sub-divided the land into parcels 918 and 919, with parcel 919 allegedly reserved as a public place and registered to the 2nd Defendant (a County Government entity), which asserted lawful acquisition. The court observed that the Defendants did not deny the land was trust land subject to completed adjudication, and failed to explain how the suit parcels were created or what procedure was followed in processing the titles, or whether any setting apart was done. The court held it trite that a County Government can only acquire adjudicated land for a public purpose after setting it apart and compensating the owners. Finding a prima facie case with chances of success, the court allowed the application as prayed and issued the interim injunction, with costs of the application provided for.

Key legal issues

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01

Prima facie case for interim injunction

Holding

The Plaintiffs established a prima facie case with chances of success because the Defendants failed to demonstrate the procedure they followed in issuing the titles or that any setting apart of trust land was done.

Reasoning

The Kyondoni Land Adjudication Committee awarded the Plaintiffs plots 65 and 66, and its sketch plan showed plot 65 stretching to Tana River with no plots 918 or 919 indicated. The Arbitration Board dismissed the appeal. The Defendants did not deny the land was trust land subject to completed adjudication, and did not explain how the suit parcels were created or how titles were processed, satisfying the threshold for an interlocutory injunction.

p. 2
02

Acquisition of trust land by County Government for public purpose

Holding

A County Government may only acquire adjudicated land for a public purpose after setting it apart and compensating the owners.

Reasoning

The court held it trite that setting apart and compensation are prerequisites for a County Government acquiring adjudicated land. Since the Defendants did not demonstrate any setting apart procedure for the suit parcels registered as a public place, their acquisition was questionable, supporting the Plaintiffs' prima facie case.

p. 2

Legal principles established

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  • A County Government can only acquire adjudicated land for a public purpose after setting apart such land and compensating the owners.

Court orders

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  1. 1.Application dated 12th January, 2017 allowed as prayed
  2. 2.Interim injunction restraining the 1st and 2nd Defendants and their agents/servants/employees from holding themselves as registered owners, entering into, trespassing, cultivating or in any way interfering with the Plaintiffs' use, enjoyment, possession and occupation of Plot No. 918 and Plot No. 919 Kivaa/Kyondoni pending hearing of the main suit
  3. 3.Costs of the Application provided for

Authorities

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Legislation

  • Land Adjudication Act
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (injunction application in pending main suit)

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, "Scolastica Mueni Nzomo & another v Francis Mwanzia & 3 others [2018] KEELC 4680 (KLR)", Case Analysis (2018). Application dated 12th January, 2017 (pending main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4680/eng@2018-01-26

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