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ELCDismissedMiscellaneous Petition dated 28th January 2020 (number not stated in judgment)· [2020] KEELC 499 (KLR)

Janet Wawira Mugo v District Land Registrar, Kirinyaga County & 2 others [2020] KEELC 499 (KLR)

Environment and Land Court
13 November 2020
ECE.C. Cherono
2,646 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 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 applicant, Janet Wawira Mugo, moved the Environment and Land Court at Kerugoya by a Notice of Motion dated 21st May 2020 filed in a petition dated 28th January 2020, seeking restraining orders against the 3rd respondent, Joyce Wawira Mugo, her co-wife, from harassing, intimidating and apprehending the applicant's family on matters concerning the ownership of the suit land, allegedly in collusion with police officers from Kianyaga Police Station, together with an order that the petition be heard on a priority basis. The 3rd respondent opposed the application, contending that the matter was a civil suit disguised as a constitutional petition, that her registration of parcel KABARE/GACHIGI/1178 flowed from a Land Disputes Tribunal award adopted as a court decree arising from proceedings initiated by the petitioner herself, and that the issues raised were not constitutional. The court identified the undisputed facts, including the co-wives' relationship, the sub-division of the ancestral land, the joint registration of parcel 1180 in the deceased's and petitioner's names in 1998, and the 3rd respondent's registration as proprietor of parcel 1178 on 9/8/2018 pursuant to an order in LDT No. 14/2003. The court held that the complaints of harassment and intimidation were criminal in nature and directed at the Officer-in-charge of Kianyaga Police Station, who had not been joined to the application. Alternatively, applying Giella v Cassman Brown, the applicant failed to establish a prima facie case or irreparable loss not compensable by damages, and the balance of convenience favoured refusal. The application was disallowed with each party bearing her own costs, the parties being family members.

Key legal issues

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01

Whether the restraining orders sought were grantable in a constitutional petition on the evidence

Holding

The application was dismissed because the applicant failed to meet the Giella v Cassman Brown criteria for injunctive relief

Reasoning

The court found that the complaints of harassment and intimidation were criminal in nature and properly directed at the Officer-in-charge of Kianyaga Police Station, who had not been joined to the application. Even treating the prayers as civil injunctive relief, the applicant failed to establish a prima facie case or irreparable loss not compensable by damages. On the balance of convenience, the court held that refusal of the application better served the parties.

p. 4
02

Who is the registered proprietor of the suit parcels

Holding

On the affidavit evidence, the 3rd respondent is registered proprietor of KABARE/GACHIGI/1178 and the petitioner of KABARE/GACHIGI/1180

Reasoning

The undisputed facts showed that parcel 1178 and 1180 were sub-divisions of the ancestral parcel; parcel 1180 was initially registered in the deceased's name then jointly with the petitioner, and after the deceased's demise the 3rd respondent was registered as proprietor of parcel 1178 pursuant to an order in LDT No. 14/2003 dated 16/04/18, with a title deed issued the same day.

p. 5

Legal principles established

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  • An applicant for an injunction must establish a prima facie case, irreparable loss not compensable by damages, and failing which the court may decide on a balance of convenience
  • Where the officer accused of harassment is not joined as a party, the court cannot grant restraining orders against police conduct

Court orders

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  1. 1.The Notice of Motion dated 21st May 2020 is disallowed/dismissed
  2. 2.Each party to bear her own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 27
  • Civil Procedure ActSections 1A, 1B
  • Registered Land Act (repealed), Cap. 300Section 102(g)

Cases cited (1)

  • Giella Vs Cassman Brown Company Ltd
    (1973) E.A. 358
Jurisdiction invoked
Article 159 of the Constitution and Sections 1A, 1B of the Civil Procedure Act (interlocutory application in a constitutional petition concerning 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, "Janet Wawira Mugo v District Land Registrar, Kirinyaga County & 2 others [2020] KEELC 499 (KLR)", Case Analysis (2020). Miscellaneous Petition dated 28th January 2020 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/499/eng@2020-11-13

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