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ELCOtherNotice of Motion dated 10th November, 2020· [2021] KEELC 55 (KLR)

Francisca Mumbua Peter v Kevin Mulei Ngumbi & 2 others [2021] KEELC 55 (KLR)

Environment and Land Court
14 December 2021
ANA. NYUKURI
2,323 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Machakos court declined an injunction over contested family land, freezing everything as it is—respondents keep grazing the land, but nobody can sell, build, or transfer it until trial.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (A. Nyukuri, J) delivered virtually on 14th December 2021 on a Notice of Motion dated 10th November 2020. The Plaintiff, administrator of the estates of Milka Wavinya Kakui and Kakui Malii Kiketi, sought a temporary injunction restraining the Respondents, administrators of the estate of the late Peter Ngumbi Mulei, from interfering with Machakos/Katheka-Kai 'B' Block 4/146, 147, 148 and 149. She averred the properties were allotted to her deceased parents by Katheka-Kai Farmers' Co-operative Society and were wrongfully included in the estate of Peter Ngumbi Mulei in Machakos HCSC No. 897 of 2010. The Respondents asserted their father acquired the properties in 2006 with the Society's sanction, had been in open occupation for over 15 years, and raised limitation and laches. The sole issue was whether the Applicants met the Giella v Cassman Brown threshold. The court found both parties held apparently Society-sanctioned ownership claims, so ownership was unclear without full trial. The Applicants, not being in occupation, failed to show irreparable loss, and the balance of convenience favoured the occupying Respondents. Instead of an injunction, the court ordered maintenance of the status quo pending trial: the Respondents to continue in occupation but use the land only for grazing, and no party to construct, develop, dispose of, lease, charge or otherwise interfere with current ownership. Costs were to be in the cause.

Key legal issues

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01

Whether the Applicants established a prima facie case with a probability of success

Holding

No clear prima facie case was established at the interlocutory stage; both parties produced apparently sanctioned claims of ownership from the Co-operative Society, leaving ownership unclear without hearing full evidence.

Reasoning

The Applicants produced Society letters dated 30th April 2019 and 20th December 2017 supporting their parents' allocation, while the Respondents produced a letter of 17th November 2006 and transfer forms of 16th November 2006 sanctioned by the Society. Both parties claim ownership with the Society's sanction; without hearing evidence the court could not determine ownership, so no clear prima facie case was shown.

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02

Whether the Applicants would suffer irreparable loss not compensable by damages, and where the balance of convenience lies

Holding

The Applicants failed on irreparable loss as they were not in occupation, and the balance of convenience favoured the Respondents who were in occupation and grazing livestock.

Reasoning

The court found that since the Applicants were not in occupation, they had not demonstrated irreparable loss if the injunction were denied. The Respondents' long occupation since 2006 tilted the balance of convenience their way. However, given the highly contested ownership, the court invoked its discretion to preserve the property by ordering maintenance of the status quo pending trial.

p. 3

Legal principles established

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  • Where the question of ownership of suit property is highly contested, the court may preserve the property by maintaining the status quo pending hearing and determination of the suit rather than grant an injunction.
  • The three Giella v Cassman Brown conditions govern the grant of interlocutory injunctions.
  • A party not in occupation of suit property who seeks an injunction must still establish irreparable loss not compensable by damages.

Court orders

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  1. 1.That the status quo obtaining as of 14th December 2021 be maintained pending the hearing and determination of this suit
  2. 2.That the Defendants/Respondents shall continue to be in occupation of the suit land and more specifically only use the suit land for purposes of grazing their livestock
  3. 3.That no party shall construct on or develop, dispose of, lease, charge or in any manner interfere with the current ownership of the suit properties

Authorities

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Legislation

  • Limitation of Actions ActSection 37

Cases cited (8)

  • Giella vs. Cassman Brown
    [1973] EA 358
  • Chevron (K) Ltd vs. Harrison Charo Wa Shutu
    [2016] eKLR
  • Sophie Wanjiku John v. Jane Mwihaki Kimani
  • Maweu v. Kiu Ranching & Farming Co-operative Society Ltd
    [1985] eKLR 430
  • Stephen Abu Mukhobi v. Daniel Oria Odhiambo & Another
    [2016] eKLR
  • Joseph Siro Mosioma v. Housing Finance Company of Kenya & 3 Others
    [2008] eKLR
  • Oksana Investment Supplies Ltd. v. Alice Wanjiru Wamwea
    [2019] eKLR
  • Mrao v. First American Bank of Kenya Ltd & Others
    (2003) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes touching on ownership of 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, "Francisca Mumbua Peter v Kevin Mulei Ngumbi & 2 others [2021] KEELC 55 (KLR)", Case Analysis (2021). Notice of Motion dated 10th November, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/55/eng@2021-12-14

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