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ELCDismissedNot stated in judgment· [2019] KEELC 1835 (KLR)

John Kaviti Mungaithi v Peter Wambua Kaviti & 4 Others [2019] KEELC 1835 (KLR)

Environment and Land Court
6 September 2019
CMC. G. Mbogo
1,705 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner failed to stop his family from blocking a land subdivision because courts refuse interlocutory orders that would decide the whole case early.

What this practically means

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Executive summary

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The Plaintiff, registered owner of Makueni/Kako/584, moved the Environment and Land Court at Makueni by Notice of Motion dated 4th October 2018 seeking a restriction order against the Defendants, injunctions restraining alienation, entry and interference with his possession and his efforts to subdivide the land, an order for removal of a caution on the title, an order compelling the 5th Defendant to grant consent to subdivide, and police enforcement of compliance. He deposed that he wished to subdivide the land amongst his sons and that the 1st to 3rd Defendants, sons of his first wife, had frustrated this by chasing away surveyors and declining Land Control Board summons. The Defendants, through the 3rd Defendant's replying affidavit, contended that the land is matrimonial property on which they have lived for decades, that a written family agreement of 11th August 2018 governs the subdivision, and that the Land Control Board, not the court, should first hear the consent application. Applying the Giella v Cassman Brown principles, the court found no prima facie case, no irreparable injury not compensable in damages, and noted that an injunction would itself injure the resident Defendants. Orders for removal of caution and subdivision consent would finally determine the suit at the interlocutory stage. The application was dismissed with costs to the Defendants on 6th September 2019 (Mbogo C.G, Judge).

Key legal issues

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01

Whether the Plaintiff established the Giella v Cassman Brown criteria for an interlocutory injunction

Holding

No; the Plaintiff failed to demonstrate a prima facie case with probability of success or irreparable injury not compensable by damages

Reasoning

The court examined the affidavit evidence and found no proof that the suit property was in danger of alienation or wrongful sale; the only interference shown was the Defendants barring surveyors. Granting the injunction would itself harm the Defendants who have resided on the land for decades. The court was not in doubt, so the balance of convenience test was not engaged.

p. 3
02

Whether the court could order removal of the caution and grant of consent to subdivide at the interlocutory stage

Holding

No; such orders would finally determine the suit and the Plaintiff must follow the statutory procedure for consent to subdivide

Reasoning

The court held that granting orders removing the caution and compelling the Land Control Board consent would effectively give the Plaintiff final relief before trial. The proper course is for the Applicant to pursue the prescribed statutory process to obtain subdivision consent; the court declined to usurp the Land Control Board's mandate.

p. 3

Legal principles established

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  • Temporary mandatory injunctions are granted only exceptionally and in the clearest of cases (as cited from Kamau Mucuha v Ripples Ltd)
  • Interlocutory relief should not grant final relief that determines the suit at the interlocutory stage

Court orders

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  1. 1.The Plaintiff/Applicant's Notice of Motion dated 4th October 2018 is dismissed with costs to the Defendants/Respondents

Authorities

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Legislation

  • Environment and Land Court ActSections 13(2)(e), 7(a)-(i)
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2 and 4; Order 51 Rule 1
  • Civil Procedure ActSections 1A, 1B, 3A
  • Constitution of KenyaArticles 40(1), 159(1) and (2)

Cases cited (2)

  • Giella Vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • Kamau Mucuha V Ripples Ltd
    [1993] eKLR
Jurisdiction invoked
Sections 13(2)(e) and 7(a)-(i) of the Environment and Land Court Act (Chapter 12A) and Articles 40(1) and 159(1) and (2) of the Constitution of Kenya

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, "John Kaviti Mungaithi v Peter Wambua Kaviti & 4 Others [2019] KEELC 1835 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1835/eng@2019-09-06

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