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ELCDismissedNot stated in judgment· [2020] KEELC 3078 (KLR)

Mzee Adsam Makinja & 2 others v Livingstone Ndungu Waithaka & 5 others [2020] KEELC 3078 (KLR)

Environment and Land Court
12 February 2020
CYC.K. Yano
973 words in judgment
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The bottom line

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A Kenyan court refused to evict long-term occupants because the landowner sought final eviction orders through an interim application backed by the wrong title document.

What this practically means

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Executive summary

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The 2nd defendant, through its director Margaret Muthoni Ndugu, moved the court by Notice of Motion dated 8th May 2019 seeking eviction of the plaintiffs from PLOT NO. 264/1/MN and vacant possession, relying on Sections 1A and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules. The applicant asserted it was the registered owner of the suit property and that the plaintiffs were trespassers. The plaintiffs, through the 1st plaintiff Mzee Adam Makinja, opposed the application as fatally defective, arguing that eviction orders could only issue after full trial and that the applicant ought to file a defence, possibly with a counter-claim for eviction. The parties filed written submissions. The plaintiffs pointed out a fatal discrepancy: the application sought eviction from PLOT NO. 264/1/MN while the annexed title was in respect of SUBDIVISION NO.16636 (ORIGINAL NO. 16635/2) SECTION 1 MAINLAND NORTH, a different parcel. The court, C.K. Yano J, found that the applicant was yet to file a defence responding to the plaintiffs' claim of over 20 years' occupation, and that the application was not anchored on any pleading. Applying the decision in Olive Mwihaki Mugenda v Okiya Omtat Okoiti, the court held that final relief should not be granted at an interlocutory stage absent exceptional circumstances. The application was found to lack merit and was dismissed with costs on 12th February 2020.

Key legal issues

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01

Whether final relief (eviction) can be granted at an interlocutory stage without pleadings supporting it

Holding

No - eviction orders cannot be granted at an interlocutory stage where the applicant has filed no defence or counter-claim and relies on a title to a different parcel from the one in dispute

Reasoning

The court noted the applicants sought eviction of plaintiffs from PLOT NO. 264/1/MN but annexed a title for SUBDIVISION NO.16636, a different parcel. The applicant had also not responded to the plaintiffs' claim of over 20 years' occupation by filing a defence or counter-claim. Following Mugenda v Okiya Omtat Okoiti, final relief cannot issue at interlocutory stage absent exceptional circumstances showing the applicant must ultimately succeed, which were absent here.

p. 2

Legal principles established

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  • A court should not grant interim relief which amounts to final relief except in exceptional circumstances where the applicant is ultimately bound to succeed, and reasons must be recorded

Court orders

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  1. 1.The Notice of Motion dated 8th May, 2019 is dismissed with costs
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules

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, "Mzee Adsam Makinja & 2 others v Livingstone Ndungu Waithaka & 5 others [2020] KEELC 3078 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3078/eng@2020-02-12

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