Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (originating plaint filed 13/5/2016; amended 20/11/2018 and 30/9/2019)· [2020] KEELC 3986 (KLR)

Mbugua & another v Mbuthia & 9 others (Environment & Land Case 518 of 2016) [2020] KEELC 3986 (KLR)

Environment and Land Court
19 November 2020
BEB M Eboso
1,691 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court refused to stop dealings with subdivided Kinoo land because the plaintiffs never challenged the earlier court orders that allowed the subdivision.

What this practically means

#

Executive summary

#
The two plaintiffs sued on 13/5/2016 seeking, among other reliefs, a declaration that subdivisions of Land Parcel Number Dagoretti/Kinoo/3072 into parcels Dagoretti/Kinoo/6248 to 6253 were unlawfully obtained and a nullity, cancellation of the subdivisions and of resultant transfers, a permanent injunction, and an equitable fresh subdivision. Before the court was the plaintiffs' notice of motion dated 10th February 2020 seeking an interlocutory injunction restraining further dealings with the subdivided parcels and an order that the 5th defendant register those orders against the titles. The application was opposed by the 1st and 2nd defendants, who deposed that the registered co-proprietors had agreed to partition the land into six equal portions but the plaintiffs refused to participate or sign documents, prompting the 1st to 4th defendants to obtain orders in Kikuyu SPMC Misc Application No 6 of 2015 permitting the partition and authorising the Executive Officer of the court to execute the necessary documents. The 5th to 10th defendants did not respond. Counsel filed written submissions relying principally on Giella v Cassman Brown. The court framed a single issue: whether the applicants had satisfied the criteria for interlocutory injunctive relief. Applying the first limb of Giella, the court held that the impugned partition was in essence an enforcement of the Kikuyu court's orders, and that the plaintiffs' proper recourse was to apply to set aside those orders or to appeal. Not having done so, the plaintiffs failed to demonstrate a prima facie case with a probability of success, and the court did not consider the remaining limbs. The motion dated 10/2/2020 was dismissed for lack of merit, without an express costs order.

Key legal issues

#
01

Whether the plaintiffs demonstrated a prima facie case with a probability of success under the first limb of Giella v Cassman Brown

Holding

No prima facie case was demonstrated because the impugned subdivision was sanctioned by orders of the Kikuyu Senior Principal Magistrate's Court in Misc Application No 6 of 2015 which the plaintiffs had not set aside or appealed against.

Reasoning

The court found that the partition and parcelling of the resultant subdivisions was sanctioned by the Kikuyu SPMC in Misc Application No 6 of 2015, making the impugned exercise an enforcement of court orders. The plaintiffs, having described that suit as a nullity, ought instead to have applied to set aside the orders or to appeal against them. Since they had done neither, they could not show a prima facie case, and the court did not consider the other limbs of the Giella test.

p. 4

Legal principles established

#
  • Where the conduct complained of is enforcement of a subsisting order of a competent court, the aggrieved party's recourse is to seek setting aside of those orders or to appeal, and failing that no prima facie case for interlocutory injunction is demonstrated.
  • At the interlocutory stage the court makes no conclusive or definitive findings on the key issues in the suit.

Court orders

#
  1. 1.The plaintiffs' notice of motion dated 10/2/2020 is dismissed for lack of merit

Authorities

#

Cases cited (5)

  • Giella v Cassman Brown & Co Ltd
    (1973) EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 1215
  • Julius Kipkeny Kolil & another v Kenya Commercial Bank & 2 others
    [2013] eKLR
  • American Cynamid Company v Ethicom Ltd
    [1975] AC 396
  • Nairobi Kiru Line Services Ltd v County Government of Nyeri & 2 others
    [2016] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land (Land Parcel Number Dagoretti/Kinoo/3072); no specific constitutional or statutory provision invoked.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mbugua & another v Mbuthia & 9 others (Environment & Land Case 518 of 2016) [2020] KEELC 3986 (KLR)", Case Analysis (2020). Not stated in the judgment (originating plaint filed 13/5/2016; amended 20/11/2018 and 30/9/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3986/eng@2020-11-19

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