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ELCPartially AllowedELC Case of 2021 (Originating Summons dated 17th March, 2021)· [2021] KEELC 82 (KLR)

Mwalungu Mwambui Nyiyo & 201 others v Total Oil Products (East Africa) Limited & another [2021] KEELC 82 (KLR)

Environment and Land Court
14 December 2021
LNL.L Naikuni
6,384 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A Mombasa court protected 201 villagers from eviction in a Kilifi land dispute, freezing all activity on the property until trial decides ownership.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Mombasa (Naikuni J) determined two competing Notices of Motion and a Preliminary Objection arising from a representative Originating Summons in which the five Plaintiffs, suing for themselves and 196 others, claim adverse possession and uninterrupted indigenous occupation of approximately 129.5 acres known as Land Reference CR. 5770 Plot No. 5/III/MN in Kilifi. The Plaintiffs' application dated 5th July, 2021 sought leave to amend the Originating Summons and interim injunctions restraining eviction, demolition, sale and alienation. The 2nd Defendant's application dated 3rd August, 2021 sought to discharge those interim orders and to strike out the Plaintiffs' application and Notice of Change of Advocates on the ground that the pleadings were drawn by an unqualified person contrary to the Advocates Act. The court applied the Mukisa Biscuits test and found the Preliminary Objection mixed law and fact, deferring it to full trial where the deponent Advocate can be cross-examined. Applying Giella v Cassman Brown, MRAO and Nguruman, the court held a serious triable dispute over ownership existed, that irreparable injury was likely, and that the balance of convenience favoured preservation of the property. Because the 2nd Defendant never filed a replying affidavit but instead purported to oppose by filing another application - a procedure the court condemned as a muddle - the Plaintiffs' application stood uncontroverted. The court allowed the Plaintiffs' application, granted 14 days' mutual leave to amend pleadings, dismissed the 2nd Defendant's application with costs to the Plaintiffs, directed registration of an inhibition against the suit land, ordered maintenance of status quo, and fixed the matter for full trial within 90 days, with costs otherwise in the cause.

Key legal issues

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01

Whether the Preliminary Objection met the Mukisa Biscuits threshold

Holding

The objection was properly on record but could not be determined at the interlocutory stage as it was a mixture of law and fact requiring cross-examination of the deponent; it was deferred to full trial

Reasoning

The court accepted the Mukisa Biscuits test that a preliminary objection must be a pure point of law. It found the assertion that pleadings were drawn by an unqualified person rested on an affidavit by an admitted Advocate of the High Court, calling for his testimony and cross-examination. Striking out pleadings on that basis alone would be draconian; determination was deferred until evidence is adduced at trial.

p. 5
02

Whether the Plaintiffs met the Giella criteria for temporary injunction

Holding

Yes; the interim orders of 6th July, 2021 were to subsist until determination of the suit, with the balance of convenience favouring preservation of the suit property

Reasoning

The court found a serious legal dispute over ownership of the land: the Plaintiffs claim indigenous occupation from time immemorial while the Defendants claim registered ownership, and the title is allegedly in third-party names. Irreparable injury not compensable by damages was shown, and the balance of convenience tilted toward preservation of the property pending trial. The 2nd Defendant did not controvert the application by proper procedure.

p. 6
03

Effect of the 2nd Defendant's failure to file a replying affidavit

Holding

The Plaintiffs' application stood unopposed and unrebutted; the orders granted on 6th July, 2021 remained in force

Reasoning

Order 51 Rule 14(1) prescribes a preliminary objection, replying affidavit or grounds of opposition as the means of opposing an application. The 2nd Defendant filed only another application and a preliminary objection, never responding to the supporting affidavit. Citing Odunga J and other authorities, the court held uncontroverted evidence stands as the truth.

p. 7
04

Whether leave to amend the Originating Summons should issue

Holding

Leave granted under Order 8 Rule 3, with further opportunity to convert pleadings to Plaint and Defence at directions under Order 37

Reasoning

The court noted pleadings had not yet closed and granted leave to amend to add plaintiffs and an additional defendant. It further took cognizance that directions under Order 37 Rules 16-19 would accord all parties a chance to convert pleadings to Plaint and Defence, allowing further amendments if need arises.

p. 7

Legal principles established

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  • A preliminary objection must constitute a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where any fact has to be ascertained
  • A prima facie case in civil matters is one in which, on the material presented, the court will conclude there exists a right apparently infringed so as to call for an explanation or rebuttal from the opposite party
  • The foundation of the jurisdiction to issue injunctions is the probability of irreparable injury, the inadequacy of pecuniary compensation and the prevention of multiplicity of suits
  • Evidence not controverted by the opposing party stands unchallenged and is taken as the truth
  • A party cannot purport to respond to an application by filing another application rather than a replying affidavit or grounds of opposition under Order 51 Rule 14

Court orders

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  1. 1.Preliminary Objection by the 2nd Defendant dated 14th September, 2021 deferred pending adducing of evidence and cross-examination on the averments of the Affidavit sworn by Peter Kenneth Kinyua Advocate dated 15th July, 2021
  2. 2.Notice of Motion application dated 5th July, 2021 by the Plaintiffs/Applicants allowed
  3. 3.Plaintiffs granted 14 days leave to amend, file and serve the Amended Originating Summons
  4. 4.1st and 2nd Defendants granted corresponding leave to file and serve Amended Defence within 14 days
  5. 5.Notice of Motion application dated 3rd August, 2021 by the 2nd Defendant dismissed with costs to the Plaintiffs
  6. 6.Status quo to be maintained on the land until the matter is heard and determined
  7. 7.Land Registrar, Kilifi directed to register an inhibition against Land Reference numbers CR. 5770 Plot No. 5/III/MN pursuant to Sections 68(1) & (2) and 69 of the Land Registration Act, 2012 and Regulations 79(1), (2) & (3) of the Land Registration (General) Regulations, 2017
  8. 8.Matter to be fixed for full trial within 90 days on priority basis; mention on 17th February, 2022 for case management and Pre-Trial Conference under Order 11 and Order 37 Rules 16, 17 & 18

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rules 1, 2, 7, 10(1)(b)
  • Civil Procedure Rules, 2010Order 1 Rule 8
  • Civil Procedure Rules, 2010Order 8 Rule 3
  • Civil Procedure Rules, 2010Order 51 Rules 10(2), 14(1)
  • Civil Procedure Rules, 2010Order 37 Rules 16, 17, 18, 19
  • Civil Procedure Rules, 2010Order 11
  • Civil Procedure Act, Cap. 21Sections 3A, 27(1), 64
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Advocates ActSections 2, 9, 34(1), 35
  • Land Act, 2012Section 90(3)
  • Land Registration Act, 2012Sections 68(1) & (2), 69
  • Land Registration (General) Regulations, 2017Regulations 79(1), (2) & (3)

Cases cited (14)

  • Gideon Mose Onchirato – Versus - Kenya Oil Co. Ltd. & Another
    [2017] eKLR
  • In Shah – Versus Mbogo
  • Stek Cosmetics Ltd. – Versus - Family Bank Ltd. & Another
    [2020] eKLR
  • Geoffrey Muli Mwalimu – Versus Hussein Mwanda & 2 others
    [2013] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd –VS- West End Distributors Ltd.
    [1969] E.A. 696
  • Attorney General & Another – Versus - Andrew Mwaura Githinji & another
    [2016] eKLR
  • Giella – Versus - Cassman Brown
  • MRAO Limited – Versus - First American Bank of Kenya Limited & 2 others
    (2003) eKLR
  • Peter Kasimba & 219 others – Versus - Kwetu Savings & Credit Co-operative Society Limited & 11 others
    (2020) eKLR
  • Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others
    (2014) eKLR
  • Linus Nganga Kiongo & 3 Others – Versus – Town Council of Kikuyu
    (2012) eKLR
  • Motex Knitwear Limited – Versus – Gopitex Knitwear Mills Limited
    Nairobi (Milimani) HCCC No. 834 of 2002
  • Autar Singh Bahra & Anor. – Versus – Raju Govindji
    HCCC No. 548 of 1998
  • Trust Bank Limited – Versus – Paramount Universal Bank Limited & 2 Others
    HCCC (Nairobi) (Milimani) No. 1243 of 2001
Jurisdiction invoked
Order 40 Rules 1, 2, 7 & 10(1)(b), Order 1 Rule 8, Order 8 Rule 3, Order 51 Rules 10(2) & 14 of the Civil Procedure Rules, 2010; Sections 3A, 27(1) & 64 of the Civil Procedure Act (Cap. 21); Articles 159(2)(d) of the Constitution; Sections 68, 69 of the Land Registration Act, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mwalungu Mwambui Nyiyo & 201 others v Total Oil Products (East Africa) Limited & another [2021] KEELC 82 (KLR)", Case Analysis (2021). ELC Case of 2021 (Originating Summons dated 17th March, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/82/eng@2021-12-14

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