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ELCOtherMachakos ELC No.215 of 2014· [2019] KEELC 191 (KLR)

Peter Kimundi v County Government of Makueni; Mukaa Trading Co. Ltd (Interested Party) [2019] KEELC 191 (KLR)

Environment and Land Court
16 December 2019
1,947 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court froze a Sultan Hamud plot dispute by ordering both sides to keep things as they were, rather than granting a full injunction.

What this practically means

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Executive summary

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This was a ruling on the Plaintiff's notice of motion dated 13th June, 2017 seeking an interlocutory injunction restraining the Defendant/Respondent from interfering with his possession and the structures he had erected on Plot 135A Sultan Hamud Township pending the hearing and determination of the main suit. The application was supported by affidavits of Peter Kimundi and two further affidavits, including one by a trained surveyor. The Defendant did not oppose the application. The Interested Party, Mukaa Trading Co. Ltd, opposed it, asserting that it is the registered owner of the adjacent Plot Sultan Hamud Town/218, that the alleged Plot 135A does not exist, and that the Plaintiff's kiosks stand on public road reserve and a parking lot, blocking access to its plot. The court noted that by a consent order of 04th May, 2016, Machakos CMCC No.220/2012 (in which Mukaa Trading Co. Ltd was plaintiff against Peter Kimundi and others) had been consolidated with this lead file, and observed that the Interested Party should have elected whether to be a Defendant or Plaintiff; for the application it was treated as a Respondent since no orders can issue for or against an interested party in a civil suit. Applying the Giella vs. Cassman Brown principles, the court found the Interested Party had tacitly admitted the Plaintiff's occupation of the suit property, though the plot number claimed by each side was disputed. Without considering the other two principles, the court ordered maintenance of status quo as at the time of filing the suit and the application: the Plaintiff to remain in occupation, and neither party to carry out further development of the suit property until the matter is heard and determined. Directions on the position of the Interested Party and the other defendants were reserved. The judgment made no costs order.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with probability of success

Holding

The court found a prima facie case had been shown to the extent that the Interested Party tacitly admitted the Plaintiff's occupation of the suit property, despite a dispute over the plot number

Reasoning

The Plaintiff deposed that he had occupied and developed the suit property since 1988 with rent-paying tenants and had sought formalization from the Commissioner of Lands and the National Land Commission. The Interested Party claimed to be the registered owner of the adjacent Plot 218 and asserted the kiosks stood on public road reserve. The court held that the Interested Party's account tacitly admitted the Plaintiff's occupation, though each disputed the plot number the other claimed. On that basis the court did not find it necessary to consider the second and third Giella principles.

p. 3
02

The appropriate interlocutory order where competing claims to land exist pending trial

Holding

A status quo order preserving occupation as at filing, with no further development by either side, was the appropriate interim relief

Reasoning

Rather than grant or refuse the conventional restraining injunction, the court exercised its discretion to preserve the position of both parties. The Plaintiff was to remain in occupation as at the date of filing, and neither party was to carry out further development on the suit property until the main suit was heard and determined. This preserved the position of both the Plaintiff in occupation and the Interested Party claiming registered title.

p. 3
03

Status of an Interested Party in consolidated proceedings

Holding

An interested party cannot have orders made for or against it in a civil suit and should elect whether to be a Defendant or Plaintiff

Reasoning

The Interested Party, Mukaa Trading Co. Ltd, was in fact a party (as plaintiff) in Machakos CMCC No.220/2012 which was consolidated with the lead file by a consent order of 04th May, 2016. The court observed that having been consolidated, it should have elected whether to be treated as a Defendant or Plaintiff. For the application, the court treated it as a Respondent since no orders can issue for or against an Interested Party in a civil suit, and reserved directions on the way forward for a later date.

p. 2

Legal principles established

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  • The principles for the grant of an interlocutory injunction are those set out in Giella vs. Cassman Brown and Co. Ltd. [1973] EA 358
  • No orders can be issued for or against an Interested Party in a civil suit; an interested party must elect to be a Defendant or Plaintiff where a consolidated suit is the same matter

Court orders

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  1. 1.An order of status quo as at the time of filing the suit and the application, whereby the Plaintiff/Applicant remains in occupation of the suit property
  2. 2.An order that neither the Plaintiff/Applicant nor the Interested Party carries out further development of the suit property until the matter is heard and determined
  3. 3.Directions reserved for a later date on the position of the Interested Party and the other Defendants named in Machakos CMCC 220/12

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure Rules 2010Order 40 Rules 1, 2 and 3
  • Civil Procedure Rules 2010Order 51 Rule 14
  • Land Registration ActSection 26
  • Civil Procedure ActSections 1A and 1B

Cases cited (1)

  • Giella vs. Cassman Brown and Co. Ltd.
    [1973] EA 358
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a land dispute, following transfer by order of Kariuki J on 19/03/2015 and consolidation under a consent order of 04th May, 2016

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, "Peter Kimundi v County Government of Makueni; Mukaa Trading Co. Ltd (Interested Party) [2019] KEELC 191 (KLR)", Case Analysis (2019). Machakos ELC No.215 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/191/eng@2019-12-16

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