Nathan Shivulu Mbelesia v Kapsabet Land Dispute Tribunal & 9 others [2021] KEELC 261 (KLR)
The bottom line
#A Kenyan landowner with a valid court judgment froze dealings in disputed parcels, and respondents' constitutional objections couldn't derail interim protection.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for interlocutory injunction
The Applicant established a prima facie case with a probability of success based on the Eldoret HCCC 86 of 1987 judgment in his favour, the green card showing the subdivisions, and the 4th Respondent's perjury conviction, applying Giella v Cassman Brown and Mrao Limited.
The court found as a fact that the High Court at Eldoret had decreed Nandi/Kamobo/258 to the Applicant and that the 4th Respondent had been convicted of perjury for denying that judgment, enabling the Land Dispute Tribunal judgment. The 4th Respondent did not respond to these matters, and the Land Dispute Tribunal proceedings showed he, not his late father, was the party. On the Giella/Mrao test the prima facie case threshold was met.
Deferral of respondents' constitutional rights objections
The 4th to 9th Respondents' arguments on Articles 48, 27(1), 50 and 159 were matters for the main petition, not the interlocutory stage.
The Respondents contended the petition infringed their rights to access to justice, equality, fair hearing and expeditious justice, and was res judicata, barred by laches and limitation. The court held these were substantive issues to be determined at the hearing of the main petition and could not defeat the conservatory orders at the interlocutory stage.
Identity of the party in the Land Dispute Tribunal proceedings
The annexed proceedings and adoption cause showed the 4th Respondent himself, not his late father, was party to Land Dispute Tribunal case no. 17/2000.
The 4th Respondent deponed that the Tribunal proceedings were instituted by Meshack Aseka Mbelesia, his late father, not himself. The court examined the Applicant's annextures, being the Tribunal proceedings and adoption cause, and found on the documents that the 4th Respondent was the party. This finding supported the prima facie case.
Legal principles established
#- A party who does not rebut depositions supported by documentary evidence leaves the court free to find a prima facie case
- Constitutional rights objections raised by a respondent to an interlocutory conservatory application are deferred to the main petition
Court orders
#- 1.The orders issued on 30.9.2021 (temporary injunction) are confirmed pending hearing and determination of the petition
- 2.The application is allowed in terms of prayer number 3 (restraining subdivision, changes to the register, transfer, sale or other dealing in the suit parcels Nandi/Kamobo/3871, 3872, 4188, 4190, 4510, 4511, 5829, 5830, 5831, 5832 and 6782)
- 3.Costs of the application to the Applicant
- Jurisdiction invoked
- Constitution of Kenya, 2010 (petition alleging violation of fundamental rights; court exercising original jurisdiction over the interlocutory conservatory application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nathan Shivulu Mbelesia v Kapsabet Land Dispute Tribunal & 9 others [2021] KEELC 261 (KLR)", Case Analysis (2021). Petition dated 2021, Notice of Motion dated 26.8.2021 (Kapsabet). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/261/eng@2021-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.