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ELCDismissedNot stated in the judgment· [2019] KEELC 4354 (KLR)

Alex Kyalo Mutua v Phostine Tabwe Musa [2019] KEELC 4354 (KLR)

Environment and Land Court
28 February 2019
1,163 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A landowner who cannot show who sold them the land or produce a sale agreement will likely lose an urgent court order to stop someone else using it.

What this practically means

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Executive summary

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The Plaintiff moved the Environment and Land Court at Machakos by Notice of Motion dated 27th February 2018 seeking interlocutory injunctions restraining the Defendant from farming on, building on, entering, trespassing on, or dealing in any manner with land parcel Machakos Town Block 3/698, and from denying him access to it. The Plaintiff deponed that he acquired the land, initially Plot No. 2408, from Katelembo Athiani Muputi Farming and Ranching Co-operative Society Limited, and produced a receipt, a confirmation letter from the Society dated 7th October 2015 and a title deed issued on 14th January 2016. The Defendant, Mutunga Imran Musa, responded through his affidavit and those of other Society members. He traced the suit land to three plots (2752 'B', 1166 and 2751X) purchased by, or on behalf of, his family from members of the Society, and produced membership cards, share certificates, transfers, a sub-division plan and photographs of houses built on the land. The court found that the Plaintiff had not disclosed the member of the Society who sold him the land, nor produced any sale agreement, and therefore had not established a prima facie case with chances of success. The Defendant, by contrast, had documented his chain of title. Further, since the Defendant was in possession, the Plaintiff would suffer no injury incapable of compensation in damages. The court dismissed the Notice of Motion with costs on 28th February 2019.

Key legal issues

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01

Prima facie case with a probability of success

Holding

The Plaintiff failed to establish a prima facie case because he did not disclose the member of the Society who sold him the suit land nor produce the purported sale agreement

Reasoning

The Plaintiff relied on a receipt, a confirmation letter from the Society and a title deed, but could not identify the member who sold him the land. In contrast, the Defendant traced the portions comprising the suit land to identifiable members of the Society through membership cards, share certificates, transfers and a sub-division plan. The court found the Plaintiff's chain of title unexplained.

p. 2
02

Damages as an adequate remedy and possession

Holding

Since the Defendant was in possession of the suit land, the Plaintiff would not suffer injury not compensable in damages

Reasoning

The court held that possession by the Defendant meant any injury to the Plaintiff could be compensated in damages. This rested on the finding that the Defendant had produced documents showing the parcels forming part of the suit land belonged to Society members who sold them to him, his mother or his brother, and that he had built houses on the land.

p. 2

Legal principles established

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  • An applicant for an interlocutory injunction who does not disclose the source of his title (the member who sold the land or the sale agreement) fails to establish a prima facie case with a probability of success
  • Where the respondent is in possession of the suit land, the applicant's injury is compensable in damages and no injunction will issue

Court orders

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  1. 1.The Notice of Motion dated 27th February, 2018 is dismissed with costs
Jurisdiction invoked
Not stated in the judgment (Environment and Land Court, unlimited first-instance jurisdiction over land)

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, "Alex Kyalo Mutua v Phostine Tabwe Musa [2019] KEELC 4354 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4354/eng@2019-02-28

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