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ELCDismissedMeru ELC Petition (application dated 25.1.2021)· [2021] KEELC 3336 (KLR)

Evangeline Karugwata Gikono v Joyce Nkuene Cypriano & another [2021] KEELC 3336 (KLR)

Environment and Land Court
12 May 2021
1,546 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Meru court refused interim protection over disputed land, ruling the applicant must first prove ownership because she had already failed in earlier litigation over the same property.

What this practically means

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Executive summary

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By an application dated 25 January 2021, Evangeline Karugwata Gikono sought conservatory orders restraining the respondents - her sister-in-law and nephew, legal representatives of the estate of Cypriano Kaiji Gikono (deceased) - from dealing with or interfering with parcel Nkuene/Taita/1631, inhibition orders against the suit land, and a stay of proceedings in Nkubu ELC No. 55 of 2019 where the respondents seek her eviction. The application, supported by her affidavit, was served but unopposed. It recounted a long, convoluted litigation history: successive succession causes (Meru 63 of 2000 and Chuka 41 of 2010, later Meru 752 of 2013), a criminal conviction for forgery later quashed on appeal, a land tribunal award registered in her favour in 2015, and a dismissed application of 23.4.2019 in the succession cause seeking injunction and rectification of grant, dismissed on 23.11.2020 because she lacked a court order vesting ownership in her. The court held that granting conservatory orders would allow the applicant to succeed where she had failed before a court of concurrent jurisdiction while her ownership claim remained undetermined. It declined to stay the Nkubu proceedings, noting that suit predated this one and that such orders might emasculate the Magistrate's courts' independence. Applying the Supreme Court's guidance in Tullow Oil that an unopposed application must still merit granting, the court dismissed the application with no orders as to costs, discharged the orders of 22.2.2021, and directed that the suit be heard on a priority basis.

Key legal issues

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01

Whether conservatory and inhibition orders could issue over Nkuene/Taita/1631 given prior litigation

Holding

No - the application was dismissed because granting the orders would conflict with rulings of courts of concurrent jurisdiction and ownership remains undetermined.

Reasoning

The court noted the dispute's long history across succession causes, criminal proceedings, tribunals and civil suits. The applicant's earlier application of 23.4.2019 in the succession cause was dismissed on 23.11.2020 for lack of a court order vesting ownership in her. Granting conservatory orders here would let her succeed where she failed there, before her ownership claim is ascertained, which the court declined to do.

p. 2
02

Whether the proceedings in Nkubu ELC No. 55 of 2019 should be stayed

Holding

No stay - the Nkubu suit predates this suit, the applicant never sought interim relief there, and the court could not tell what orders exist in that matter.

Reasoning

The plaint in the Nkubu matter indicates ownership was determined in a court of law, and the applicant did not disclose her defence or rebuttal. This court lacks the full Nkubu proceedings and does not know what orders that court has issued. The Nkubu matter was filed in 2019, this suit in 2021; granting a stay might emasculate the Magistrate's courts' independence.

p. 2
03

Whether an unopposed application ought to be granted as a matter of course

Holding

No - unopposed status does not relieve the court of examining merit; the application, though unopposed, was fraught with difficulties.

Reasoning

Relying on the Supreme Court's decision in Tullow Oil PLC, the court held that even where an application is unopposed, the court must assess its merit. The present application, though unopposed (no responses were filed despite service), was fraught with difficulties arising from past and present litigation in multiple forums, and was therefore dismissed.

p. 2

Legal principles established

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  • An unopposed application is not granted merely because it is unopposed; the court must still examine its merit.
  • A court of concurrent/horizontal jurisdiction should not grant orders that effectively decide afresh issues determined by a court of similar jurisdiction; forum shopping spawns judicial anarchy.
  • Where a party has been denied injunctive relief in another forum for lack of a vesting order, she must first prove ownership before interim orders issue.

Court orders

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  1. 1.The application dated 25.1.2021 is dismissed with no orders as to costs
  2. 2.The orders given on 22.2.2021 are discharged
  3. 3.The suit be heard on priority basis
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - jurisdiction over land disputes; not expressly cited in the extract

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, "Evangeline Karugwata Gikono v Joyce Nkuene Cypriano & another [2021] KEELC 3336 (KLR)", Case Analysis (2021). Meru ELC Petition (application dated 25.1.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3336/eng@2021-05-12

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