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ELCPartially AllowedNotice of Motion dated 22nd August 2018· [2019] KEELC 5002 (KLR)

Alice Waruguru Mbui & another v Elijah Mithamo Mbui [2019] KEELC 5002 (KLR)

Environment and Land Court
16 January 2019
ECE.C. CHERONO
1,700 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 protected an applicant's ancestral land claim but refused orders against sub-plots owned by people not joined to the case.

What this practically means

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Executive summary

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The Applicants, siblings of the Defendant/Respondent, moved the Environment and Land Court at Kerugoya by Notice of Motion dated 22nd August 2018 under Order 40 Rules 1 and 2 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking a temporary injunction and an inhibition order over land parcel KABARE/NYANGATI/440 and all parcels resultant from its sub-division. They deponed that the land was ancestral, registered in their late father's name, that the Respondent fraudulently caused himself to be registered in about 1972 and later sub-divided the land, allocating portions to his children and third parties. The Respondent opposed, relying on transmission through a Succession Cause, estoppel, and the fact that the original title was closed on sub-division with resultant parcels registered to non-parties. Applying the Giella v Cassman Brown principles, the court found the Applicants had demonstrated a prima facie case and irreparable injury as respects parcel KABARE/NYANGATI/1061, a sub-division of the original ancestral land registered in the Respondent's name, holding that ancestral attachment renders damages inadequate. However, the court declined to grant orders over the original, now-closed parcel and the resultant parcels whose owners were undisclosed, since adverse orders cannot issue against persons not heard. The application was allowed in part: a temporary injunction and an inhibition order were granted over parcel KABARE/NYANGATI/1061 pending determination of the suit, with costs in the cause.

Key legal issues

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01

Prima facie case and irreparable loss under the Giella principles

Holding

The Applicants established the first and second Giella principles in respect of parcel KABARE/NYANGATI/1061, a sub-division of the ancestral land, and damages would not be an adequate remedy

Reasoning

The Green Card evidence showed the original parcel KABARE/NYANGATI/440 was sub-divided and part transmitted to the Respondent. Because the land is ancestral, carrying special attachment to the Applicants' ancestors, no substitute land exists to which they could connect, so monetary compensation would be inadequate. Prima facie case and irreparable injury were therefore shown as against the Respondent's own resultant parcel.

p. 2
02

Injunction against resultant parcels owned by undisclosed third parties

Holding

The court declined to grant injunction or inhibition orders over the original parcel KABARE/NYANGATI/440 and the resultant parcels whose registered owners were undisclosed and not parties to the suit

Reasoning

The Green Card showed the suit parcel was closed on sub-division into new numbers, some transferred to third parties. The Applicants made no diligence to identify the registered proprietors of the resultant parcels. Issuing orders against undisclosed persons would be futile and would condemn them unheard, contrary to natural justice.

p. 2

Legal principles established

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  • Injunctions cannot issue against undisclosed, non-joined third-party proprietors of resultant parcels, as natural justice requires that a party be heard before adverse orders issue against him
  • Special ancestral attachment to land may render damages an inadequate remedy for purposes of the irreparable-loss limb of the Giella test

Court orders

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  1. 1.A temporary injunction granted in favour of the Applicants against the Respondent, his agents and/or servants, from transferring, alienating, cultivating and/or otherwise interfering with the plaintiffs' rights over land parcel No. KABARE/NYANGATI/1061 or any other part thereof pending the hearing and determination of this suit
  2. 2.An order of inhibition placed on parcel No. KABARE/NYANGATI/1061 from being transferred, sub-divided or interfered with in any other way pending the hearing and determination of the suit
  3. 3.Costs of the application to be costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Civil Procedure ActSections 1A, 1B and 3A
  • Law of Succession ActSection 76

Cases cited (6)

  • Giella Vs Cassman Brown & Co. Ltd & Another
    (1973) E.A 358
  • Kenya Commercial Finance Co. Ltd Vs Afraha Education Society
    (2001) Vol. 1 E.A 86
  • Eric Vs J. Makokha & 4 Others Vs Lawrence Sagini & 2 Others
    (1994) e K.L.R
  • Basil Criticos Vs Attorney General & Others
    (2016) e K.L.R
  • Vijay Marjanza Vs Nansigh Madhasleigh Darba & Another
    (2000) e K.L.R
  • Kiprotich Arap Chepkwony Vs Simon Langat & 3 Others
    (2017) e K.L.R
Jurisdiction invoked
Order 40 Rules 1 and 2 Civil Procedure Rules; Sections 1A, 1B and 3A Civil Procedure Act

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, "Alice Waruguru Mbui & another v Elijah Mithamo Mbui [2019] KEELC 5002 (KLR)", Case Analysis (2019). Notice of Motion dated 22nd August 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5002/eng@2019-01-16

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