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ELCPartially AllowedNot stated in the judgment (interlocutory application dated 12th March, 2019)· [2019] KEELC 3170 (KLR)

Susan Nyambura Mwathi v Duncan Kiria Kabete [2019] KEELC 3170 (KLR)

Environment and Land Court of Kenya (trial court; delivered at Chuka)
29 May 2019
8,035 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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A Kenyan land court protected a long-term occupier from eviction but refused to stop the registered owner from using unoccupied parts of the land.

What this practically means

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Executive summary

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This is an interlocutory ruling by P. M. Njoroge, J, delivered at Chuka on 29th May 2019, in a land dispute between Susan Nyambura Mwathi (plaintiff) and Duncan Kiria Kabete (defendant) over parcel Title Number Tharaka/Chiakariga 'A'/586. The plaintiff, claiming occupation and development of the land since 1974 and alleging fraudulent registration of the defendant (who was recorded as owner while a minor by his father, a land committee member), sought an inhibition against dealings with the title, a temporary injunction restraining eviction, demolition, sale, leasing or charging of the land, or in the alternative preservation of the status quo. The defendant opposed the application on the grounds that the suit was sub judice Chuka CMCC No. 56 of 2018, which the plaintiff had withdrawn on 12th March 2019 leaving his counterclaim (for eviction) subsisting; that the application was an abuse of process and forum shopping; and that the plaintiff had made material non-disclosure in obtaining ex parte interim orders. The court declined to make conclusive findings on the sub judice, abuse of process or non-disclosure questions, holding that these and the question whether the counterclaim survived withdrawal required oral hearing at trial. Finding it necessary to preserve the suit property pending trial, the court issued an inhibition against the title and an injunction limited to restraining the defendant from evicting the plaintiff or demolishing her houses, expressly declining to bar the registered owner from accessing unoccupied portions. Costs were made costs in the cause, with Order 11 compliance timelines and directions set for 16th July 2019.

Key legal issues

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01

Whether to preserve the suit property pending trial through inhibition and injunction

Holding

The court granted a partial preservation: inhibition on all dealings with the title and an injunction limited to eviction and demolition, leaving the registered owner free to access unoccupied parts.

Reasoning

The court considered the pleadings, affidavits, authorities and submissions, including the defendant's arguments that the suit was sub judice CMCC 56 of 2018 and that the plaintiff had not made full disclosure. It declined to make conclusive findings on those contested issues, holding they required oral hearing at trial. However, preservation of the suit property pending trial was necessary, and it issued a tailored order balancing the plaintiff's occupation with the defendant's registered ownership.

p. 11
02

Whether the suit is sub judice Chuka CMCC No. 56 of 2018 and whether the counterclaim survives withdrawal of the main suit

Holding

Not conclusively determined at the interlocutory stage; left for oral hearing.

Reasoning

The defendant argued that the plaintiff's withdrawal of CMCC 56 of 2018 left his counterclaim subsisting, rendering the present suit sub judice and an abuse of process, and that the plaintiff had failed to disclose the prior suit. The court noted that on the defendant's own admission the prior suit had not been heard and determined, and held that whether the counterclaim still subsists as a suit is a moot point needing oral canvassing, with findings to be made at trial.

p. 11

Legal principles established

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  • Pending the hearing and determination of a land suit, the court may preserve the suit property by way of inhibition and a limited injunction, but the registered owner cannot be injuncted from accessing portions of the land not occupied by the applicant.

Court orders

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  1. 1.An order of inhibition registered against Title Number Tharaka/Chiakariga/'A'/586 pending the hearing and determination of this suit
  2. 2.An order of injunction restraining the defendant from evicting the plaintiff or demolishing her houses
  3. 3.The plaintiff to fully comply with Order 11 CPR within 21 days of delivery of the ruling, and the defendant to comply within 21 days after the period stipulated for the plaintiff
  4. 4.Costs in the cause
  5. 5.Parties to come to court for directions on 16th July, 2019
Jurisdiction invoked
Original civil jurisdiction of the High Court (Environment and Land Court) over land disputes, coupled with Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act (invoked by the parties in submissions)

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, "Susan Nyambura Mwathi v Duncan Kiria Kabete [2019] KEELC 3170 (KLR)", Case Analysis (2019). Not stated in the judgment (interlocutory application dated 12th March, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3170/eng@2019-05-29

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