Pauline Mpaka Kwaria v Mark Mungiiria Muguna [2019] KEELC 521 (KLR)
The bottom line
#A Kenyan landowner lost her bid to block eviction because she delayed appealing and gave conflicting statements about which land she occupied.
What this practically means
#Executive summary
#Key legal issues
#Whether new counsel came on record properly under Order 9 rule 9
The firm of John Muthomi & Co Advocates is properly on record
The issue had already been dealt with in a ruling of 10.7.2019 dismissing a preliminary objection on the same point; the prayer to come on record was combined with other prayers, consistent with Pravinchandra Jamnadas Kakad v Lucas Oluoch Mumia (2015) eKLR, and was not opposed in the replying affidavit.
Whether inhibition and injunction could issue after judgment
No - the court was functus as to interlocutory relief; no appeal was shown to have been instituted within 60 days under Rules 82 and 83 of the Court of Appeal Rules, so there was no pending appeal to preserve
The suit had been determined by judgment, so the court could not assess a prima facie case or an arguable appeal. Although a notice of appeal was filed on 8.11.2018, no memorandum or record of appeal was lodged within 60 days and no extension of time was sought, so the notice was deemed withdrawn and there was no appeal.
Whether the applicant deserved the court's discretion on the merits
No - the applicant was not candid and was guilty of material non-disclosure as to which parcel she occupies
The respondent showed that in Meru CM E & L No. 108 of 2018 the applicant swore she occupied parcel 3348 and had obtained injunctive orders over it, yet in this suit she claims parcel 3349. She did not file a further affidavit to answer these averments, leaving the court uncertain which land she occupies and without sufficient material to exercise discretion in her favour.
Legal principles established
#- After judgment, a court cannot grant interlocutory relief such as inhibition or injunction pending appeal where no appeal has been instituted within the prescribed time
- An applicant for discretionary relief must be candid and make full disclosure; material non-disclosure disentitles the applicant to the court's discretion
Court orders
#- 1.The firm of John Muthomi & Co Advocates is properly on record for the applicant
- 2.The application dated 28.1.2019 is dismissed with costs to the respondent
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(c) and (e) of the Civil Procedure Act; Section 68 of the Land Registration Act; Order 9 rule 9 and Order 40 rules 1, 2, 3 and 4 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pauline Mpaka Kwaria v Mark Mungiiria Muguna [2019] KEELC 521 (KLR)", Case Analysis (2019). Not stated in the judgment (notice of motion dated 28.1.2019 in a suit filed on 14.8.2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/521/eng@2019-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.