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ELCPartially AllowedMavoko SPM Civil Appeal (arising from Mavoko SPMCC No. 906 of 2015); date of Appeal 4th July 2019· [2021] KEELC 1827 (KLR)

Marco Obita v Benjamin Kithee Chamia & another [2021] KEELC 1827 (KLR)

High Court of Kenya, Environment and Land Court
24 September 2021
4,552 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's High Court confirmed that courts cannot order demolition of structures at an early stage of a land dispute without a full trial and special circumstances.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Machakos against the ruling of the trial Magistrate's court in Mavoko SPMCC No. 906 of 2015 delivered on 13th June 2019, in which the trial court allowed the Respondents' Notice of Motion and granted a mandatory injunction compelling the Appellant to demolish structures and deliver up vacant possession of Mavoko Town Block 3/32201, with each party bearing its own costs. The Appellant, who had purchased 2 acres from one Mr. Damain Musyoka and been in occupation since December 2007, raised numerous grounds, principally that the mandatory injunction was granted at the interlocutory stage without viva voce evidence, and that the trial court wrongly treated the Respondents' title as unassailable despite contradictions, including the registered owner's denial of having sold the entire parcel to the Respondents. The Respondents first challenged the competence of the appeal for want of an extracted order or decree, relying on Order 42 Rule 2. The court held that Order 42 Rule 13(4)(f) requires the judgment, order or decree appealed from but not both, and that the annexed Ruling sufficed. On the merits, applying the principles in Kenya Breweries Ltd vs. Washington Okeyo, the court found the trial court failed to identify special circumstances justifying a mandatory injunction at the interlocutory stage; the competing claims required a full trial covering the sub-division, survey, beacons, consents and fraud allegations. The court allowed the appeal, set aside the ruling of 13th June 2019 and the subsequent orders, and awarded costs of the appeal to the Appellant, to be borne by the 1st and 2nd Respondents.

Key legal issues

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01

Whether the Record of Appeal is incompetent for want of a formal extracted order or decree

Holding

The Appeal was competent; the impugned Ruling annexed was sufficient under Order 42 Rule 13(f)

Reasoning

Order 42 Rule 13(4)(f) requires a copy of the judgment, order or decree appealed from, not both judgment and decree. The conjunction 'or' means an appellant is not mandatorily obligated to attach both. The term 'Judgment' should be read to include 'Ruling' where applicable. Since the Ruling was annexed, extracting the orders was unnecessary and striking out would be too draconian.

p. 5
02

Whether the trial Court erred in granting a mandatory injunction at the interlocutory stage without viva voce evidence

Holding

Yes; the trial court erred in granting mandatory injunction orders without taking viva voce evidence or establishing special circumstances

Reasoning

A mandatory injunction on an interlocutory application is only granted in clear cases or where special circumstances exist. The evidence was contradictory: the registered owner Teresia Nduku Mwaluko denied selling the entire suit land to the Respondents, and it was unclear whether the Appellant was a trespasser. The legality of the sale and sub-division needed to be ventilated at full trial with oral and documentary evidence, including surveying and mutation processes, consents and fraud allegations.

p. 6
03

Entitlement to the relief sought in the Appeal

Holding

The Appellant was entitled to the prayers in the Appeal

Reasoning

Having found the trial court failed to identify special circumstances and disposed of the suit at interlocutory stage, the court allowed the appeal and set aside the ruling of 13th June 2019 and the subsequent orders of the trial court.

p. 6

Legal principles established

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  • It is not mandatory for an appellant to include both the judgment and the decree in a Record of Appeal; the judgment or ruling appealed from suffices under Order 42 Rule 13(4)(f) of the Civil Procedure Rules
  • A mandatory injunction will not normally be granted on an interlocutory application in the absence of special circumstances
  • A first appellate court must re-evaluate and assess the evidence adduced in the trial court while making due allowance for not having seen or heard the witnesses

Court orders

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  1. 1.The Ruling of 13th June, 2019 and the subsequent orders by the trial Court in Mavoko SPMCC No. 906 of 2015 are hereby set aside
  2. 2.The costs of the Appeal to be borne by the 1st and 2nd Respondents

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 2
  • Civil Procedure Rules, 2010Order 42 Rule 13(4)(f)
  • Land Registration ActSection 26(1)(b)
  • Civil Procedure Act Cap 21Sections 1, 1A, 3 and 3A
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2 and 3

Cases cited (11)

  • Maher Unissa Karim vs. Edward Oluoch Odumber
    (2015) eKLR
  • Chege vs. Suleiman
    (1988) eKLR
  • Paul Kurenyi Leshuel vs. Ephantus Kariithi Mwangi & Another
    (2015) eKLR
  • Joseph D.K Kimani & Anor vs. Simeon Chege Kamangu
    (2016) eKLR
  • United India Insurance Co. Ltd and others vs. East African Underwriters (Kenya) Ltd
    (1985) KLR 898
  • Kenya Breweries Ltd & Anor vs. Washington O. Okeyo
    (2002) eKLR
  • Selle & Anor vs. Associated Motor Boat Co. Ltd and others
    (1968) EA 123
  • Elizanya Investments Limited vs. Lean Energy Solutions
    [2021] eKLR
  • Nyota Tissue Products vs. Charles Wanga Wanga & 4 Others
    [2020] eKLR
  • Nahashon Mutuku Ndungu vs. Anthony Kusu Wambua
    Machakos ELC Appeal Case number 39 of 2019
  • Kenya Breweries Ltd vs. Washington Okeyo
    (2002) EA 109
On appeal from
Mavoko Senior Principal Magistrate's Court
Mavoko SPMCC No. 906 of 2015
Jurisdiction invoked
First appeal to the High Court (Environment and Land Court) against the ruling of the trial Magistrate's court in Mavoko SPMCC No. 906 of 2015, under the Civil Procedure Act and Rules

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, "Marco Obita v Benjamin Kithee Chamia & another [2021] KEELC 1827 (KLR)", Case Analysis (2021). Mavoko SPM Civil Appeal (arising from Mavoko SPMCC No. 906 of 2015); date of Appeal 4th July 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1827/eng@2021-09-24

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