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ELCDismissedNot stated in the ruling as provided· [2021] KEELC 1547 (KLR)

Alexander M’mirianga M’mauta v Sebastian Muye [2021] KEELC 1547 (KLR)

Environment and Land Court
12 October 2021
2,274 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Malindi dismissed a landowner's injunction application because he could not prove ownership of the disputed plot or show irreparable harm.

What this practically means

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Executive summary

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This is a ruling by M.A. Odeny J of the Environment and Land Court, Malindi, delivered on 12th October 2021 on a Notice of Motion dated 15th June 2021 by the Appellant/applicant. The applicant sought a stay of orders issued on 7th June 2021 dismissing his application for an injunction pending the hearing of the application, and in the alternative an injunction restraining the Respondent from entering upon, trespassing on, constructing on, leasing or selling Plot No. LR No. 12182, alleged by the Respondent to be Plot No. 84 Malindi, pending the hearing and disposal of the appeal. The application was canvassed by written submissions. Counsel for the applicant argued that construction on the subject plot had not been completed and relied on several Court of Appeal authorities on injunctions pending appeal and preservation of the substratum of the case. Respondent's counsel relied on section 26(1) of the Land Registration Act on indefeasibility of title, contending the applicant had no ownership documents, that the respondent was in occupation, and that construction was already complete. The court framed one issue: whether the applicant met the threshold for a temporary injunction pending the determination of the appeal. Applying the Giella v Cassman Brown principles as articulated in Patricia Njeri v National Museum of Kenya and Nguruman Limited v Jan Bonde Nielsen, the court found no evidence linking Plot No. 84 Malindi Bus Park to parcels L.R No. 12182 or 12183, and noted the applicant's transfer from Mwalimu Kazungu was incomplete. The applicant, having admitted he was never in occupation, would suffer no irreparable loss compensable only by damages. The application was dismissed with costs.

Key legal issues

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01

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

Holding

No - the applicant failed to demonstrate the relationship between Plot No. 84 Malindi Bus Park and parcels L.R No. 12182 or 12183, and his alleged transfer from Mwalimu Kazungu was incomplete

Reasoning

The applicant relied on a grant over L.R No. 12182 in favour of Mwalimu Kazungu with a transfer yet to be effected, an allotment letter issued to Anna S. Katana over a different plot, and a 2006 Council letter showing his allocation application was still under consideration. The Commissioner of Lands letter did not clarify the relation between the parcels, leaving no evidence of a clear and unmistakable right threatened by the respondent.

p. 3
02

Whether the applicant would suffer irreparable loss not compensable by damages

Holding

No - the applicant admitted he had never been in occupation of the suit property, so damages would be an adequate remedy

Reasoning

The applicant's own affidavit and photographs showed the respondent in occupation and construction, which was said to be complete. The court held that an award of damages would be sufficient should the applicant ultimately succeed on appeal, and that an injunction at that stage would be an order made in vain.

p. 3

Legal principles established

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  • An applicant for an injunction pending appeal must satisfy the Giella v Cassman Brown principles, including establishing a prima facie case with a probability of success and irreparable loss not compensable by damages
  • Courts do not issue orders in vain; where construction is complete or the applicant was never in occupation, damages will suffice

Court orders

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  1. 1.The Notice of Motion dated 15th June 2021 is dismissed with costs

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Civil Procedure RulesOrder 21(1)

Cases cited (13)

  • Afyare Enterprises Company Limited v Gideon Kiremah Mugambi & 3 others
    Nairobi Court of Appeal Civil Application No.163 of 2018
  • Elijah Kipngeno Arap Bii v Samuel Mwehia Gitau & another
    Court of Appeal Civil Application No.243 of 2004
  • Hesbon K. Limisi v Delilah Achieng Mathews & 2 others
    [2015] eKLR
  • Judith M. Njue v Standard Chartered Bank of Kenya & another
    [2001] eKLR
  • Nyals (Kenya) Ltd v United Housing Estate Ltd
    [1995] eKLR
  • Patricia Njeri & 3 Others v National Museum of Kenya
    [2004] eKLR
  • Madhupaper International Limited vs Kerr
    (1985) KLR 840
  • J. K. Industries vs KCB
    (1982 – 88) KLR 1088
  • Butt vs Rent Restriction Tribunal
    (1982) KLR 417
  • Giella vs Cassman Brown & Company Ltd
    (1973) EA 358
  • Shitukha Mwamudo & Others
    (1986) KLR 445
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Venture Capital
Jurisdiction invoked
Appellate/interlocutory jurisdiction over an appeal from the lower court (specific provision not cited in the ruling)

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, "Alexander M’mirianga M’mauta v Sebastian Muye [2021] KEELC 1547 (KLR)", Case Analysis (2021). Not stated in the ruling as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1547/eng@2021-10-12

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