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ELCDismissedPetition dated 16.11.2019 (Meru)· [2020] KEELC 84 (KLR)

Andrew Murega M’itiame v Land Registrar, Igembe Central District & 2 others; Isaiyah M’itumitu M’mwithia & 5 others [2020] KEELC 84 (KLR)

Environment and Land Court
4 November 2020
878 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The petitioner sought an injunction restraining the interested parties from using or interfering with land parcels 4241 and 5744 Athiru Rujine Adjudication Section, together with a stay of proceedings in Maua CM-ELC No. 180 of 2019, claiming over 50 years' occupation of the land as his family's home. The interested parties opposed, asserting title arising from Meru High Court Succession Cause No. 633 of 2015, under which parcel 4241 was subdivided into four parcels and titles issued to the 2nd, 5th and 4th interested parties. The court identified four issues adverse to the petitioner. First, the declaration sought showed his rights in the land had not crystallised, and relying on John Mukora Wachihi vs Minister for land & 6 others, held that such a dispute belongs in an ordinary suit, not a constitutional petition. Second, the claim rested on 1995 decisions whose nexus to the current claim was unexplained, including a 25-year delay in enforcing them. Third, granting the orders would interfere with the distribution effected in the succession cause. Fourth, the suit was filed just days after the petitioner was sued in Maua, leading the court to conclude it was intended to stall those proceedings; the petitioner was directed to submit himself to the Maua trial court. The court held that no prima facie case was established under the Mrao definition and dismissed the application dated 16.10.2019 with costs to the interested parties.

Key legal issues

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01

Whether a constitutional petition may be used to determine uncrystallised land ownership rights

Holding

No. Where a party's rights and interests in land have not crystallised, the dispute belongs in an ordinary suit, not a constitutional petition.

Reasoning

The first prayer sought a declaration of absolute ownership, showing the petitioner's rights were not yet established. The court, citing John Mukora Wachihi vs Minister for land & 6 others, held that a petition cannot be used to ascertain such rights; ownership must be litigated in an ordinary suit before constitutional remedies may be invoked.

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02

Whether the petitioner established a prima facie case for an injunction

Holding

No. The claim rested on 25-year-old decisions whose nexus to the current claim was unexplained, and the orders would interfere with a succession cause distributing the land.

Reasoning

The court found four issues adverse to the applicant: unresolved ownership requiring an ordinary suit; unexplained reliance on 1995 decisions after 25 years' delay; interference with Succession Cause No. 633 of 2015 if orders were granted; and the timing of the suit, filed days after the petitioner was sued in Maua, suggesting it was intended to stall that case.

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03

Whether the suit was an abuse of process aimed at stalling the Maua proceedings

Holding

Yes, the court concluded the petition was filed as a way of stalling Maua CM-ELC No. 180 of 2019.

Reasoning

The petitioner was sued in Maua by plaint filed on 23.9.2019 and filed this suit only days later, without exhibiting his defence or counterclaim or offering a plausible account for the timing. The logical conclusion was that the suit was filed to stall the Maua case, and the petitioner should instead submit himself to that trial court.

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Legal principles established

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  • A constitutional petition is not the proper vehicle to ascertain uncrystallised rights and interests in land; such disputes should be resolved in an ordinary suit.
  • An applicant for an injunction must establish a prima facie case with a chance of success as defined in Mrao vs First American Bank of Kenya Ltd.

Court orders

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  1. 1.The application dated 16.10.2019 is dismissed with costs to the interested parties

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 rule 1

Cases cited (2)

  • John Mukora Wachihi vs Minister for land & 6 others
    Petition 82 of 2010 Nairobi
  • Mrao vs First American Bank of Kenya Ltd and Two others
    (2003) KLR 125
Jurisdiction invoked
Article 162(2) of the Constitution (Environment and Land Court) – implied; no express provision cited in the 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, "Andrew Murega M’itiame v Land Registrar, Igembe Central District & 2 others; Isaiyah M’itumitu M’mwithia & 5 others [2020] KEELC 84 (KLR)", Case Analysis (2020). Petition dated 16.11.2019 (Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/84/eng@2020-11-04

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