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ELCDismissedNot stated in judgment (Makueni Environment and Land Court; Notice of Motion dated 18/08/2011)· [2019] KEELC 1437 (KLR)

Sammy Muli (suing on his own behalf and that of the Estate of Nzisa Muli the Deceased) v Edward Muli Buna & another [2019] KEELC 1437 (KLR)

Environment and Land Court
1 October 2019
921 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The Makueni land court refused to block a land sale because the applicant had no title deed and couldn't prove he'd suffer harm money couldn't fix.

What this practically means

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Executive summary

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This is a ruling on the Plaintiff/Applicant's Notice of Motion dated 18 August 2011, brought under Order 40 Rules 1, 2, 3 and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking a temporary injunction restraining the Defendants from selling, disposing of, transferring, leasing, charging or parting with possession of land parcel Makueni/Unoa/67 pending the hearing and determination of the suit. The Applicant, Sammy Muli, administrator of the estate of his late mother Nzisa Muli, alleged the suit property was fraudulently sold and transferred to the 2nd Respondent without consultation or alternative land, and that eviction would render him and his siblings landless and destitute. The 2nd Respondent, Kamweli Mwangangi Kituku, opposed through a replying affidavit, asserting he is the registered owner, having been transferred the land by the 1st Respondent, Edward Muli Buna, the Applicant's father. He noted the Applicant and his brother had been sued in Machakos HCCC No.256 of 1996, where the defence and counterclaim were dismissed with costs on 18 July 2001. Only the Respondents filed submissions. Applying the Giella v Cassman Brown principles, Justice Mbogo found the Applicant exhibited no title deed, did not controvert that ownership was conclusively determined in the earlier suit, and failed to show irreparable harm compensable by damages or that the balance of convenience favoured him. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Prima facie case

Holding

No prima facie case established

Reasoning

The 2nd Respondent holds the title deed to Makueni/Unoa/67 and is the registered owner. The Applicant, an administrator of his late mother's estate, exhibited no title deed and did not controvert the deposition that ownership of the suitland was conclusively determined in Machakos HCCC No.256 of 1996, in which the defendants' defence and counterclaim were dismissed with costs. Accordingly the Applicant failed to demonstrate a prima facie case with a probability of success.

p. 2
02

Irreparable harm

Holding

No irreparable injury shown

Reasoning

The Applicant alleged he and his siblings would be rendered landless, homeless and destitute if evicted. The court found he did not show how his eviction would cause irreparable harm or injury incapable of adequate compensation by an award of damages, failing the second Giella principle.

p. 2
03

Balance of convenience

Holding

Balance of convenience tilts in favour of the Respondents

Reasoning

Given the failure on the first two principles, and even if the court were in doubt, the balance of convenience would favour the Respondents as registered owners entitled to possession of the suitland.

p. 2

Legal principles established

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  • A temporary injunction applicant must satisfy the three principles in Giella v Cassman Brown & Co Ltd [1973] EA 358
  • A party claiming an interest in registered land must exhibit a title or demonstrate the registered owner's title is impeached

Court orders

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  1. 1.The Applicant's Notice of Motion dated 18/08/2011 seeking a temporary injunction over Makueni/Unoa/67 is dismissed
  2. 2.Costs of the application to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 40 Rules 1, 2, 3

Cases cited (1)

  • Giella vs. Cassman Brown and Co. Ltd
    [1973] EA 358
Jurisdiction invoked
Inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rules 1, 2, 3 of the Civil Procedure Rules

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, "Sammy Muli (suing on his own behalf and that of the Estate of Nzisa Muli the Deceased) v Edward Muli Buna & another [2019] KEELC 1437 (KLR)", Case Analysis (2019). Not stated in judgment (Makueni Environment and Land Court; Notice of Motion dated 18/08/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1437/eng@2019-10-01

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