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ELCDismissedELC Case (Iten), Notice of Motion dated 18th February 2021· [2021] KEELC 2797 (KLR)

Christopher Kangogo Cheboiboch v Susan Chepichi Chepkiyeng (Environment & Land Case E002 of 2021) [2021] KEELC 2797 (KLR)

Environment and Land Court of Kenya
16 June 2021
SKS. M. Kibunja
3,809 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 refused to protect a land claimant with an injunction because he had an appeal over the same land already pending.

What this practically means

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Executive summary

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The applicant moved the Environment and Land Court at Iten by Notice of Motion dated 18th February 2021 seeking interlocutory injunctions to restrain the respondent, the registered owner of land parcel IRONG/ITEN/1760, from trespassing on, evicting him from, demolishing or dealing with a 0.02 hectare portion of that parcel. He claimed he entered the land in 2000 as a trespasser after a void sale of the adjoining parcel IRONG/ITEN/911 from James Kipkoros Kenei (no Land Control Board consent having been obtained), and asserted adverse possession. The respondent opposed, asserting title issued in 1993, a decree in Iten SPM Land Case 13 of 2018 ordering eviction, and that the applicant's earlier application for joinder and review was struck out, with an appeal (ELC Appeal No. 13 of 2021) now pending, making the new suit an abuse of process. The court framed three issues: prima facie case, abuse of process, and costs. It found the parties had mainly submitted on the yet-unheard main suit; that the applicant gave no reasonable explanation for not seeking preservation orders in the pending appeal; and that the first-filed matter should be determined first even though res judicata did not yet apply. Following Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi, the court held gazetted magistrates with pecuniary jurisdiction can determine adverse possession claims. The Notice of Motion was dismissed in its entirety with costs to the respondent under section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the applicant established a prima facie case for an interlocutory injunction

Holding

No; the court declined to grant the injunction, noting the parties submitted on the main suit rather than the application and that a pending appeal over the same property made the application improper

Reasoning

The court found the parties' submissions strayed into the main originating summons, itself unheard. It noted the applicant had already participated in Iten SPM Land Case 13 of 2018, his application for joinder and review was struck out, and an appeal (ELC Appeal No. 13 of 2021) was pending. He offered no reasonable explanation for not seeking the preservation orders in that pending appeal, so the injunction could not issue.

p. 3
02

Whether the application amounts to an abuse of court process

Holding

Effectively yes; the court held it would be embarrassing to entertain an appeal and a fresh adverse possession suit over the same property concurrently, and the applicant should await the appeal's determination

Reasoning

The court observed the same subject matter was before it on appeal (ELC Appeal No. 13 of 2021) from the Iten magistrate's court decree. Though not yet res judicata, the first-filed matter should be determined first to avoid embarrassing the court. Upon determination of the appeal the applicant may move the appropriate court, or seek preservation orders within the appeal itself.

p. 3
03

Jurisdiction of magistrates' courts over adverse possession claims

Holding

Gazetted magistrates with pecuniary jurisdiction can hear and determine adverse possession claims

Reasoning

Relying on Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & Another, the court reasoned that section 26(3) and (4) of the Environment and Land Court Act and section 9(a) of the Magistrates' Courts Act confer jurisdiction over title-to-land disputes, including adverse possession. Section 38(1) of the Limitation of Actions Act, a pre-2010 statute, must be construed with adaptations to conform to the Constitution, promoting devolution and access to justice.

p. 5

Legal principles established

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  • Magistrates duly gazetted under section 26(3) of the Environment and Land Court Act with requisite pecuniary jurisdiction have power to hear and determine adverse possession claims
  • Where an appeal against orders in a prior suit over the same property is pending, a party should await its determination rather than file a fresh suit on the same subject matter

Court orders

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  1. 1.The Notice of Motion dated 18th February 2021 is dismissed with costs.
  2. 2.The respondent to have the costs of the application pursuant to section 27 of the Civil Procedure Act.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 162(2), 165(7), 169, 169(1)(a), 169(2), 23(2), 259, 6(3), 48; Section 7(1) of the Sixth Schedule
  • Environment and Land Court Act, 2011Section 26(3) and (4)
  • Magistrates' Courts Act, 2015Section 9(a), Section 7(1)
  • Limitation of Actions ActSection 38(1)
  • Civil Procedure ActSection 2, Section 27
  • Civil Procedure RulesOrder 37 Rules 7, 16, 17 and 18
  • Land Registration ActSection 18

Cases cited (6)

  • Giella -vs- Cassman Brown
  • Nguruman Limited -vs- Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 (2014) eKLR
  • MRAO LTD –VERSUS- FIRST AMERICAN BANK OF KENYA LTD
    (2003) eKLR
  • Pius Kipchirchir Kogo versus Frank Kimeli Tenai
    (2018) eKLR
  • Refrigeration and Kitchen Equipment Utensils Ltd vs Shah & Others
    1990 LLR 294 (CAK)
  • Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & Another
    [2020] eKLR
Jurisdiction invoked
Articles 162(2) and 165(7) of the Constitution; Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Christopher Kangogo Cheboiboch v Susan Chepichi Chepkiyeng (Environment & Land Case E002 of 2021) [2021] KEELC 2797 (KLR)", Case Analysis (2021). ELC Case (Iten), Notice of Motion dated 18th February 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2797/eng@2021-06-16

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