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ELCPartially AllowedNot stated in judgment· [2021] KEELC 1161 (KLR)

Fidelis Ndonye Makenzi & another v Geoffrey Misi Mutua & another [2021] KEELC 1161 (KLR)

Environment and Land Court
1 November 2021
COChristine Ochieng
1,546 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court protected a family living on disputed land by freezing the situation, but refused to fully block the estate from dealing with it.

What this practically means

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Executive summary

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This was a ruling on the Plaintiffs' Notice of Motion dated 7 September 2020 seeking a temporary injunction restraining the Defendants, administrators of the estate of Jonathan Mutua Misi, from selling, transferring, evicting or dealing with Mavoko Town Block 3/3523, Mavoko Town 3/2640, and Commercial Plot Nos. 161 and 87, Lukenya Ranching Ltd, pending hearing of the suit. The Plaintiffs claimed the deceased, their brother/uncle, had purchased a share (No. 290) at Lukenya Ranching and Farming Cooperative Society in 1964 by delivering a cow supplied by their mother, and held the share and resultant land parcels in trust for them and Misi Makenzi Wilson. The Defendants, through Geoffrey Misi Mutua, denied the trust, asserting the share and all resultant parcels were registered solely in the deceased's name, accusing the 1st Plaintiff of intermeddling and trespass, and citing the pending succession cause, Machakos High Court P&A No. 95 of 1995, in which confirmation of the grant was stayed pending this suit. Applying Giella v Cassman Brown and Mrao v First American Bank, the court found the Plaintiffs' trust claim not baseless, noting their objection to confirmation of the grant and the 1st Plaintiff's residence and permanent home on the suit land. Although a prima facie case was established, the court declined the injunction as framed and instead ordered that status quo be maintained, with the Plaintiffs not to be evicted from the suit lands pending determination of the suit. Costs were awarded in the cause.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case with a probability of success for purposes of a temporary injunction

Holding

Yes - the trust claim was not baseless and the Plaintiffs had objected to confirmation of the grant claiming the deceased held the land in trust for them

Reasoning

Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, the court found registration of the suit land in the deceased's name was undisputed, but the disputed trust claim, supported by annexed documents and the Plaintiffs' objection to the confirmation of grant, meant the claim was not baseless. The first Plaintiff's residence and permanent home on the land further weighed in favour of preserving the suit's substratum.

p. 2
02

What relief should issue pending hearing and determination of the suit

Holding

Not the full injunction sought, but maintenance of status quo - the Plaintiffs are not to be evicted from the suit lands pending trial

Reasoning

Although the prima facie case threshold was met, the court exercised discretion to preserve the status quo rather than grant the restraining orders as framed, directing that the Plaintiffs not be evicted from the suit lands pending the hearing and determination of the suit, and allowed the application as merited on that basis.

p. 2

Legal principles established

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  • A claimant occupying and settled on suit land with an arguable trust claim justifies preservation of the substratum of the suit pending trial, even absent registered proprietorship.

Court orders

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  1. 1.Status quo to be maintained wherein the Plaintiffs should not be evicted from the suit lands, pending the hearing and determination of the suit
  2. 2.Costs in the cause

Authorities

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Cases cited (9)

  • Giella Vs Cassman Brown
    (1973) EALR 358
  • Mrao Ltd V First American Bank of Kenya Ltd
    (2003) eKLR
  • Habib Bank AG Zurich Vs Eugene Marion Yakub
    Civil Application No. Nairobi 43 of 1982
  • Francis Jumba Enziano & Others V Bishop Philip Okeyo & Another
    Nairobi HCCC No. 1128 of 2001 (unreported)
  • Pius Kipchirchir Kogo V Frank Kimeli Tenai
    (2018) eKLR
  • Evans Otieno Nyakwana V Cleophas Bwana Ongaro
    (2015) eKLR
  • Margaret Ngoiri Ngotho V Joyce Njeri Njau
  • Exclusive Estate Ltd Vs Kenya Posts & Telecommunications Corporation & Another
    Civil Appeal No. 62 of 2004
  • Patrick Mathenge Gachii & 3 Other V Karumi Wambugu & Another
    (2010) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over dispute concerning suit lands (reference to related Machakos High Court P&A No. 95 of 1995)

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, "Fidelis Ndonye Makenzi & another v Geoffrey Misi Mutua & another [2021] KEELC 1161 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1161/eng@2021-11-01

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