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ELCDismissedNot stated in judgment· [2020] KEELC 3162 (KLR)
Mzee Adsam Makinja & 2 Others v Livingstone Ndungu Waithaka & 5 Others [2020] KEELC 3162 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The 2nd defendant/applicant, by Notice of Motion dated 8th May 2019 under Sections 1A and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules, sought eviction of the plaintiffs/respondents from PLOT NO. 264/1/MN and vacant possession to Margaret Muthoni Ndugu, its director, on the basis that it was the registered owner of the suit property and the plaintiffs were trespassers. The injunction previously issued in the plaintiffs' favour had been set aside on 6th May 2019. The plaintiffs opposed through a replying affidavit by the 1st plaintiff, Mzee Adam Makinja, arguing that eviction orders can only issue after full hearing and that the applicant ought to file a defence, if necessary with a counter-claim. The court noted that the applicants had filed no defence or counter-claim to the plaintiffs' claim of over 20 years' occupation of PLOT NO. 264/I/MN, and that the title exhibited related to SUBDIVISION NO. 16636 (ORIGINAL NO. 16635/2) SECTION I MAINLAND NORTH - a different parcel from that in respect of which eviction was sought. Applying the Court of Appeal decision in Olive Mwihaki Mugenda & Another v Okiya Omtata Okoiti & 4 Others (2016) eKLR, the court held that final relief cannot be granted at an interlocutory stage save in exceptional circumstances with recorded reasons. Finding no pleading basis for the application and no clear case justifying summary eviction, the court dismissed the application with costs on 12th February 2020.
Key legal issues
#01
Whether eviction (final relief) can be granted on a interlocutory application
Holding
No - final eviction orders cannot be granted at an interlocutory stage absent a clear, exceptional case
Reasoning
The court adopted the Court of Appeal's citation of Indian authority that interim relief amounting to final relief is only granted in exceptional circumstances with recorded reasons. Here the applicant had not filed a defence or counter-claim to the plaintiffs' claim of over 20 years' occupation, and the title exhibited related to a different parcel than the one in respect of which eviction was sought. The application therefore had no pleading foundation.
p. 2
Legal principles established
#- A court should not grant interim relief which amounts to final relief; only in exceptional circumstances where the applicant is ultimately bound to succeed, with reasons recorded
- An application for eviction must be anchored on pleadings; an applicant who has not filed a defence or counter-claim and relies on title to a different parcel cannot obtain final relief at an interlocutory stage
Court orders
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mzee Adsam Makinja & 2 Others v Livingstone Ndungu Waithaka & 5 Others [2020] KEELC 3162 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3162/eng@2020-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.