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ELCOtherTigania PMCC 98 of 2011 (Appeal)· [2019] KEELC 2356 (KLR)

Joel Kilambu & 2 others v Shadrack Nkubitu Mugwika [2019] KEELC 2356 (KLR)

Environment and Land Court
18 July 2019
LMLucy N. Mbugua
680 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 ordered evicted parties back onto their land because a lawyer misstated the situation, confirming courts punish misrepresentation.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Meru (Lucy N. Mbugua, ELC Judge) in an appeal arising from Tigania PMCC 98 of 2011, in which the applicants, having lost their bid to defend the suit by ruling of 31.1.2019, filed a memorandum of appeal and an application for stay of execution filed on 21.3.2019. When the application came up on 8.4.2019, the respondents' counsel stated that execution had taken place, yet eviction only occurred on 10.5.2019. On 13.5.2019, the applicants' counsel in turn misled the court by stating that the applicants were still on the land. The court found that both counsel had fallen short, but that the respondents' misrepresentation on 8.4.2019 fundamentally changed the landscape of the dispute and led to the applicants' eviction. Applying Gikonyo J's dictum in Priscilla Ndubi & another vs Gerishon Gatobu Mbui on the duty of full disclosure, the court held that the respondents ought not be allowed to profit from distorting the status quo. The court directed that the parties revert to the position they held as at 8.4.2019, meaning the applicants return to the suit land until the stay application is heard and determined. The judgment was delivered in open court at Meru on 18 July 2019. No costs order was made.

Key legal issues

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01

Misrepresentation of status quo by counsel and its effect on stay proceedings

Holding

The respondents' counsel misrepresented that execution had taken place on 8.4.2019 when eviction occurred on 10.5.2019; the distortion fundamentally changed the dispute and could not be allowed to stand.

Reasoning

The court found that the applicants' counsel was also at fault, being mute on 8.4.2019 and misleading the court on 13.5.2019. However, the respondents' misrepresentation on 8.4.2019 had the effect of fundamentally changing the landscape of the dispute, causing the applicants to be evicted later. Drawing on Gikonyo J's dictum on full disclosure, the court held the respondents should not profit from distorting the status quo, and directed restoration of the 8.4.2019 position pending the stay application.

p. 1

Legal principles established

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  • Parties in judicial proceedings must make full disclosure of all material facts to the court, including the status quo on the ground

Court orders

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  1. 1.The parties to revert to the position they held as at 8.4.2019, meaning the applicants go back to the suit land until the application for stay is heard and determined

Authorities

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Cases cited (1)

  • Priscilla Ndubi & another vs Gerishon Gatobu Mbui
    Meru Succession Case no. 720 of 2013
On appeal from
Principal Magistrate's Court, Tigania
PMCC 98 of 2011
Jurisdiction invoked
Appellate/stay jurisdiction of the Environment and Land Court over an appeal from the Principal Magistrate's Court (ruling of 31.1.2019)

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, "Joel Kilambu & 2 others v Shadrack Nkubitu Mugwika [2019] KEELC 2356 (KLR)", Case Analysis (2019). Tigania PMCC 98 of 2011 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2356/eng@2019-07-18

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