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ELCDismissedMarimanti SPMCC No. 21 of 2018 (Appeal)· [2019] KEELC 673 (KLR)

Josphat Kinyua Kajui v Stephen Kanyaru M’Impwi [2019] KEELC 673 (KLR)

Environment and Land Court of Kenya
21 November 2019
4,958 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court upheld an order stopping a man from occupying disputed land, telling him to argue ownership at trial, not before.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Chuka against a ruling delivered on 6th December 2018 by Hon. P. M. Maina, Senior Principal Magistrate, in Marimanti SPMCC No. 21 of 2018. The magistrate had granted the respondent an interlocutory injunction restraining the appellant from entering upon, working on or interfering with land parcel No. Tharaka/Marimanti/761, while declining to order exhumation of the body of the appellant's deceased son buried on the land. The appellant advanced four grounds, including that the magistrate erred in finding a prima facie case, in granting the injunction despite his claimed long possession, on the balance of convenience, and in failing to consider a preliminary objection. The appeal was canvassed by written submissions. The respondent, relying on Giella v Cassman Brown and Mrao Ltd v First American Bank, argued the appellant's pleadings were contradictory, that he filed no counterclaim to protect his alleged interest, and that his arguments on possession and limitation went to the merits. Njoroge J, sitting as a first appellate court, reviewed the totality of the lower court record, held the magistrate had properly considered when prohibitory and mandatory injunctions were merited and rightly refused exhumation, and found that questions of possession, limitation and status quo were substantial issues for trial. The appeal was dismissed with costs to be in the main cause.

Key legal issues

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01

Whether the trial magistrate properly granted the temporary injunction on the Giella v Cassman Brown principles

Holding

The magistrate properly applied the principles: the respondent, as registered owner, established a prima facie case with probability of success, stood to suffer irreparable loss as a peasant farmer, and the balance of convenience favoured him.

Reasoning

The court reviewed the pleadings and filings in the lower court as a first appeal. The respondent held a certificate of official search showing registration of the suit parcel, while the appellant's pleadings were contradictory, denying knowledge of the land while claiming ownership, and he filed no counterclaim to protect his alleged interest. The magistrate's finding that the appellant recently trespassed was well founded, and his discretion was properly exercised.

02

Whether the appellant's arguments on possession, limitation and status quo should be determined at this interlocutory stage

Holding

Those are substantial issues going to the merits of the main suit and must await full trial; the definitive resolution of the dispute lies in the hearing and determination of the suit.

Reasoning

The appellant's submissions concentrated on his alleged continuous possession since adjudication, limitation under section 7 of the Limitation of Actions Act, and maintenance of status quo. The court held that engaging these merits at the interlocutory appeal stage would pre-empt issues for trial; interim relief preserves the position pending full hearing.

p. 6
03

Whether the magistrate erred in failing to consider the appellant's preliminary objection

Holding

The preliminary objection had been withdrawn by the appellant before hearing, so there was nothing for the magistrate to consider.

Reasoning

The respondent's submissions recorded that the preliminary objection dated 24th August 2018 was set down for written submissions, but counsel for the appellant orally withdrew it on 15th October 2018 and the withdrawal was allowed. The appellant also did not substantively address several grounds of appeal in his submissions.

p. 5

Legal principles established

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  • A first appeal court is entitled to examine the totality of the pleadings and filings in the lower court and come to its own conclusions
  • No two cases are congruent to a degree of mathematical exactitude in their facts and circumstances, so precedents must be applied with care
  • An appellate court will not lightly interfere with the exercise of judicial discretion by a lower court

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal to be in the main cause

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Registered Land ActSection 27

Cases cited (5)

  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    (2003) eKLR
  • Carl Ronning v Societe Navale Chaugers Delmas Vieljeux (The Francois Vieljeux)
    (1984) KLR
  • Giella v Cassman Brown & Co. Ltd
    (1973) E.A 358
  • Gio-Fo Investment Limited v Martini Charo Masha Mwanduka & 4 Others
    (2006) eKLR
  • Abma Investments v Sarah Tumno
    (2012) eKLR
On appeal from
Senior Principal Magistrate's Court, Marimanti
SPM CC No. 21 of 2018
Jurisdiction invoked
First appellate jurisdiction over an appeal from the ruling of the Senior Principal Magistrate's Court in Marimanti SPMCC No. 21 of 2018

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, "Josphat Kinyua Kajui v Stephen Kanyaru M’Impwi [2019] KEELC 673 (KLR)", Case Analysis (2019). Marimanti SPMCC No. 21 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/673/eng@2019-11-21

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