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ELCDismissedNot stated in judgment (Notice of Motion dated 20th March 2018)· [2019] KEELC 4717 (KLR)

Rawson Mgwede Kodi v Urinda Baya Benjeni (Environment & Land Case 57 of 2019) [2019] KEELC 4717 (KLR)

Environment and Land Court
18 January 2019
JOJ. O. Olola
1,056 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to stop a land sub-division because the landowner himself had taken part in the adjudication process and never finished his appeal.

What this practically means

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Executive summary

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The Plaintiff, Rawson Mgwede Kodi, moved the Environment and Land Court at Malindi by Notice of Motion dated 20th March 2018 seeking an interlocutory injunction to restrain the Defendant, Urinda Baya Benjeni, from sub-dividing, trespassing upon, encroaching upon, fencing off or interfering with Plot No. Mwele/Simakeni/865 at Rabai pending the hearing of the suit. The Plaintiff claimed to be the legal owner in open and continuous possession, alleging the Defendant had encroached and was sub-dividing the parcel without colour of right. The Defendant replied that the land was ancestral land of the Mwamtukuyu Clan; that a Land Adjudication Committee decision of 16th December 2016 directed sub-division, leaving the Plaintiff with Plot 865 (his homestead and graveyard) and registering the Defendant with the newly created Plot 1275; and that the Plaintiff never appealed that decision. The court found the parties' families had disputed the land since the 1960s. The Plaintiff did in fact lodge an appeal to the Kilifi Land Adjudication and Settlement Officer by letter dated 18th December 2016, which was never heard and determined, yet the sub-division was implemented on 13th March 2018 pursuant to the Committee's decision. The court held the Plaintiff was aware of and participated in the process, and his claim of encroachment without lawful justification was gravely untruthful. Finding no merit in the application, the court dismissed it with costs to the Defendant on 18th January 2019.

Key legal issues

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01

Entitlement to an interlocutory injunction over Plot No. Mwele/Simakeni/865

Holding

The application lacked merit because the Plaintiff's assertion of trespass and unlawful sub-division was untruthful; the sub-division of 13th March 2018 was carried out pursuant to the Land Adjudication Committee's decision of 16th December 2016, which the Plaintiff had appealed but which appeal had never been heard and determined

Reasoning

The court traced the dispute back to the 1960s and noted the recent adjudication process. The Committee's decision required sub-division leaving the Plaintiff with Plot 865 and registering the Defendant with new Plot 1275. The Plaintiff knew of and participated in the process, appealed the verdict, and declined to participate in the sub-division. His claim of encroachment without colour of right was therefore found gravely untruthful, and no merit was found in the application.

p. 2

Legal principles established

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  • A party who participated in Land Adjudication Committee proceedings and lodged an undetermined appeal cannot claim that a sub-division implemented pursuant to the Committee's decision was done without colour of right or lawful justification

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 20th March 2018 is dismissed
  2. 2.Costs of the application awarded to the Defendant
Jurisdiction invoked
Not stated in judgment

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, "Rawson Mgwede Kodi v Urinda Baya Benjeni (Environment & Land Case 57 of 2019) [2019] KEELC 4717 (KLR)", Case Analysis (2019). Not stated in judgment (Notice of Motion dated 20th March 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4717/eng@2019-01-18

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