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ELCPartially AllowedNotice of Motion dated 26th August, 2020 (suit by Plaint dated 6th March, 2017)· [2021] KEELC 3970 (KLR)

Julius Ndung’u Mbugua & another v Mwanzo Development Company Limited [2021] KEELC 3970 (KLR)

Environment and Land Court
19 March 2021
1,066 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court corrected its own mistaken land injunction orders, confirming that final title orders only come after a full trial.

What this practically means

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Executive summary

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This Environment and Land Court decision at Machakos, delivered by O.A. Angote J on 19th March, 2021, determined a Notice of Motion dated 26th August, 2020 by the 1st Plaintiff seeking review of orders issued on 23rd November, 2017, discharge of orders 1 and 2 to enable the Machakos Land Registrar to issue title documents over Mavoko Town Block 2/2623 to the 1st Plaintiff, and in the alternative, summons to the Land Registrar to show cause for non-compliance. The application, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 45 and 51 of the Civil Procedure Rules, 2010, was unopposed. The suit originated from a Plaint dated 6th March, 2017 seeking a mandatory injunction compelling the Defendant to transfer the suit property, with the Deputy Registrar to execute transfer documents in default. The court found that the 2017 Ruling had allowed an interlocutory application 'as prayed', and that all prayers, including both temporary and permanent injunction, were erroneously extracted, confusing the Land Registrar and preventing implementation. The court held that the Ruling intended only a temporary injunction, since a prima facie case was the test applied, and that final orders could only follow viva voce evidence. Finding an apparent error on the face of the record, the court reviewed the 2017 orders to read as a temporary injunction restraining the Defendant from interfering with the suit property pending hearing and determination of the suit, and awarded costs of the 2017 application against the Defendant. The main suit remains pending.

Key legal issues

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01

Error on the face of the record justifying review

Holding

The Ruling of 23rd November, 2017 allowed an interlocutory application 'as prayed', and all prayers, including temporary and permanent injunction, were erroneously extracted as final orders, amounting to an apparent error on the face of the record warranting review.

Reasoning

The court found that the application before it in 2017 was for a temporary injunction pending hearing of the suit. Allowing the entire application without specifying which prayers were granted led to confusing orders that the Land Registrar could not implement. This constituted an apparent error on the face of the record amenable to review under Order 45.

p. 2
02

Final orders at interlocutory stage

Holding

A temporary injunction, not a permanent mandatory injunction, was what the court intended to grant; final orders can only be made after trial.

Reasoning

The Ruling had found a prima facie case with chances of success, a principle applicable to temporary injunctions. Although final orders may exceptionally issue at interlocutory stage, the applicable standards differ, and the court had no intention of granting final injunction orders without viva voce evidence.

p. 2

Legal principles established

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  • A court has jurisdiction to review its orders where there is an apparent error on the face of the record, such as where an interlocutory application was allowed in its entirety without specifying the orders actually granted
  • Final orders of injunction cannot be granted simultaneously with a temporary injunction and may only be granted after viva voce evidence

Court orders

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  1. 1.Review of the Ruling and orders of 23rd November, 2017 such that the Application dated 6th March, 2017 is allowed only in terms of a temporary injunction restraining the Defendant from disposing of, selling, offering for sale, subdividing, charging, transferring or in any way interfering with Title No. Mavoko Town Block 2/2623 (Plot No. 381 JKIA Phase 5) pending the hearing and determination of the suit
  2. 2.The costs of the Application dated 6th March, 2017 to be paid by the Defendant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure Rules, 2010Orders 45 and 51
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act and Orders 45 and 51 of the Civil Procedure Rules, 2010 (application for review)

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, "Julius Ndung’u Mbugua & another v Mwanzo Development Company Limited [2021] KEELC 3970 (KLR)", Case Analysis (2021). Notice of Motion dated 26th August, 2020 (suit by Plaint dated 6th March, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3970/eng@2021-03-19

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