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ELCDismissedTigania PMCC 174/2018 - appeal; notice of motion dated 11.4.2019· [2019] KEELC 3378 (KLR)

Amin Mohamed Khan v Mary Mwonjaru Cecilia & 2 others [2019] [2019] KEELC 3378 (KLR)

Environment and Land Court
22 May 2019
LMLUCY N. MBUGUA
563 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused an injunction blocking construction on disputed land because the applicant failed to give full disclosure of what the lower court had considered.

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) on a notice of motion dated 11th April 2019 filed by the appellant/applicant in an appeal against the ruling of the Tigania magistrates' court in PMCC 174/2018. The applicant sought an injunction restraining the three respondents from constructing on, using, or interfering with his quiet occupation and possession of land parcel Tigania/Antuamburi/6388, and confirmation of those restraints until the appeal was finalized. He contended that he was in occupation and held title; that the magistrate on 4th April 2019 dismissed his application dated 24th December 2018 without proper reasons, without considering his affidavits, annexures and submissions, and on extraneous findings; that there was double registration over the same land; and that refusal of the injunction would cause chaos and landlock him and his family, as the respondents had dug a trench across his gate. The application was served but unopposed. The court perused the trial ruling, which recorded that both the applicant and the respondent held titles to the suit land, with the respondent's title being older, and that on that basis no prima facie case had been established. The court noted that the applicant failed to avail the documents he claimed had been ignored, and that full disclosure of the issues before the magistrate was incumbent upon him. Observing that the lower court case, filed in 2018, was still at an infancy stage, the judge hesitated to grant orders that would choke its prosecution. The application was dismissed with no orders as to costs.

Key legal issues

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Whether an interlocutory injunction should issue pending an appeal where there is double registration of the same parcel of land

Holding

No injunction was granted. The trial court had found both parties held titles to the same land, with the respondent's title being older, and had concluded no prima facie case was established; the applicant did not supply the materials said to have been ignored to justify interference.

Reasoning

The court perused the ruling in PMCC Tigania 174/2018 and found that the magistrate's dismissal of the restraining orders rested on the finding of double registration with the respondent's title being older, such that no prima facie case had been established. The applicant alleged the magistrate ignored his affidavits, annexures and submissions but did not annex or avail those documents. Given that the lower court matter, filed in 2018, was still at an infancy stage, the court declined to grant orders that would choke its prosecution. The application was dismissed with no orders as to costs.

p. 2

Legal principles established

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  • An applicant on appeal seeking interlocutory relief must give full disclosure of the proceedings and materials that were before the trial court, including the applications, affidavits and submissions said to have been overlooked
  • An appellate court should be slow to grant orders that would choke or stifle the prosecution of the pending trial court case

Court orders

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  1. 1.The application dated 11.4.2019 is dismissed with no orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
On appeal from
Tigania Magistrates' Court
PMCC Tigania 174/2018
Jurisdiction invoked
Appellate/supervisory jurisdiction of the Environment and Land Court over an appeal from the magistrates' court (statutory appeal); court invoked Article 159(2)(d) of the Constitution as argued by the applicant

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, "Amin Mohamed Khan v Mary Mwonjaru Cecilia & 2 others [2019] [2019] KEELC 3378 (KLR)", Case Analysis (2019). Tigania PMCC 174/2018 - appeal; notice of motion dated 11.4.2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3378/eng@2019-05-22

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