Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 29th October 2019 (Embu ELC suit; related to Embu ELC Case No. 71A of 2014 (O.S.))· [2020] KEELC 2031 (KLR)

Sospeter Kithumbu Murangiri & 2 others v Faustino N. Njoka & 3 others [2020] KEELC 2031 (KLR)

Environment and Land Court
30 April 2020
2,380 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

The Embu Environment and Land Court refused to freeze disputed Mbeere land, finding the clan had waited 15 years and sued the wrong way.

What this practically means

#

Executive summary

#
The Plaintiffs, representatives of the Ikandi clan of the Mbeere tribe, moved the court by notice of motion dated 29th October 2019 under Order 51(1), Order 40(1)(a) and Order 40(3) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking an interim injunction restraining the Defendants from selling, leasing, charging or alienating eighteen parcels of land in Mbeere/Mbita pending trial. They claimed clan ownership and suspected fraud in the Defendants' acquisition. The 1st and 3rd Defendants countered that the registered proprietors had not been joined, that the Plaintiffs were not in occupation, and that no prima facie case or irreparable damage was shown. The 4th Defendant, a purchaser of parcels 2087 and 2092, pleaded bona fide purchase for value, due diligence and Land Control Board consent, and noted prior unsuccessful injunction proceedings in Embu ELC Case No. 71A of 2014 (O.S.). The court traced the dispute to the land adjudication process, the Minister's decision under Section 29 of the Land Adjudication Act quashed by the High Court on 15th December 2004, and the subsequent judgment of 26th September 2019 in favour of the Nditi clan. Applying the Giella v Cassman Brown principles, the court held the Plaintiffs had shown no prima facie case: statutory mechanisms must be strictly followed, questions of interpretation and execution of a decree belong to the executing court under Section 34(1) of the Civil Procedure Act, and fresh suits after judicial review would breed endless litigation. No irreparable damage was demonstrated, possession was unclear, most registered proprietors were not joined, and the Plaintiffs delayed over 15 years. The motion was dismissed with costs to the 1st, 3rd and 4th Defendants only, without prejudice to the Plaintiffs' case at trial.

Key legal issues

#
01

Whether the Plaintiffs demonstrated a prima facie case with a probability of success

Holding

They did not; their mode of litigation bypassed the statutory adjudication mechanisms and the High Court judicial review decision, and questions of interpretation of a decree belong to the executing court under Section 34(1)

Reasoning

The dispute had been through land adjudication, the Minister's appeal and a High Court judicial review decision quashing the Minister's decision in favour of the Plaintiffs' clan. Instead of appealing or seeking review, the Plaintiffs filed a fresh plaint for 'interpretation' of a 2004 judgment and recovery of the properties. The court held that statutory redress mechanisms must be strictly followed and that interpretation/execution questions fall to the executing court under Section 34(1), so no prima facie case was shown.

p. 3
02

Whether the Plaintiffs would suffer irreparable damage if the injunction was denied

Holding

They would not; only apprehension of alienation was pleaded, which cannot constitute irreparable damage

Reasoning

Neither the motion nor the supporting affidavit identified or demonstrated any specific irreparable harm incapable of compensation by damages. Mere fear that the Defendants might alienate the suit properties, and an assertion that no party would suffer prejudice if the order issued, fell short of the second Giella principle.

p. 3
03

Balance of convenience

Holding

Not demonstrated; there was scanty evidence of who was in possession of the suit properties

Reasoning

Apart from conceding the 4th Defendant's possession of two parcels, the Plaintiffs produced no evidence of possession or development on the rest of the properties; indeed their own pleading suggested they were not in possession and sought vacation by the Defendants before distribution and registration of titles.

p. 3
04

Non-joinder of registered proprietors and delay

Holding

Two further reasons for refusal: most registered proprietors were not joined, and the Plaintiffs waited over 15 years to file suit

Reasoning

Adverse orders could not issue against absent property owners as a matter of natural justice. Additionally, the judgment sought to be interpreted was rendered in December 2004, and no explanation was given for the more than 15-year delay in seeking interim orders; equity aids the diligent, not the indolent.

p. 3

Legal principles established

#
  • Where Parliament has provided clear mechanisms for redressing particular grievances, such procedure must be strictly followed
  • All questions relating to execution, discharge or satisfaction of a decree must be determined by the court executing the decree, not by a separate suit (Section 34(1) Civil Procedure Act)
  • Equity aids the diligent and not the indolent; unexplained delay of over 15 years defeats interim relief
  • It is against natural justice to grant adverse orders against property owners who are not parties to the proceedings

Court orders

#
  1. 1.The Plaintiffs' notice of motion dated 29th October 2019 is dismissed with costs to the 1st, 3rd and 4th Defendants only

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 51(1), Order 40(1)(a), Order 40(3)
  • Civil Procedure Act (Cap. 21)Sections 1A, 1B, 3A, 34(1)
  • Land Adjudication Act (Cap. 284)Section 29

Cases cited (5)

  • Giella V Cassman Brown & Co. Ltd
    [1973] EA 358
  • The Speaker of the National Assembly V Karume
    [2008] 1 KLR 426 (EP)
  • Peter Muturi Njuguna V Kenya Wildlife Service
    [2017] eKLR
  • Nicholas Njeru Vs The Hon. Attorney General & 8 Others
    [2013] eKLR
  • Ibrahim Mungara Kamau V Francis Ndegwa Mwangi
    [2014] eKLR
Jurisdiction invoked
Order 51(1), Order 40(1)(a) and Order 40(3) of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act (Cap. 21)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Sospeter Kithumbu Murangiri & 2 others v Faustino N. Njoka & 3 others [2020] KEELC 2031 (KLR)", Case Analysis (2020). Notice of Motion dated 29th October 2019 (Embu ELC suit; related to Embu ELC Case No. 71A of 2014 (O.S.)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2031/eng@2020-04-30

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