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ELCOtherNot stated in judgment (Notice of Motion dated 8.2.2021)· [2021] KEELC 4101 (KLR)

Phineas Ngaku Murungi & 6 others v Riungu Kaminchi & 14 others [2021] KEELC 4101 (KLR)

Environment and Land Court
10 March 2021
PNP. M. Njoroge
1,047 words in judgment
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The bottom line

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Kenya's Environment and Land Court at Chuka adopted a signed consent by all parties' advocates as a court order, freezing harmful activity on disputed family land pending trial.

What this practically means

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Executive summary

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The plaintiffs, describing themselves as extended members of the family of the Late M'Thuura Njuri (Deceased), moved the Environment and Land Court at Chuka by a Notice of Motion dated 8th February 2021, invoking Sections 1A, 1B, 3A and 63(c) and (e) of the Civil Procedure Act and Articles 22, 40, 162 and 165 of the Constitution. They sought a temporary injunction restraining the defendants, their agents and servants from dealing with Plot Nos. 1480 and 1977, Lower East Magutuni, and the resultant subdivisions LR. NO. MWIMBI/L.E. MAGUTUNI/3712-3716, 3613-3624, 2381 and 1977. The plaintiffs asserted that the parcels were clan/ancestral land held in trust by the late Wilfred Murungi Mboroki for the family; that a family meeting on 20th October 2015 determined the subdivision; that they held registrations since 2017; and that the defendants had violently frustrated surveyors, obstructed demarcation, and remained in illegal occupation despite a meeting before the area Deputy County Commissioner on 2nd January 2019. Rather than contested interlocutory proceedings, on 10th March 2021 all parties' advocates (Kirimi Muturi for the plaintiffs, Mwenda Mwarania for the 1st to 12th defendants, and Kiongo for the Attorney General for the 13th to 15th defendants) proffered a consent. P. M. Njoroge, Judge, adopted the consent as an order of the court: conservatory orders issued prohibiting activities damaging or causing waste on the suit properties, the application was compromised on those terms, and costs were reserved to the cause. The judgment is interlocutory only and determines nothing on the merits of the underlying trust and ownership dispute.

Key legal issues

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Whether the interlocutory application could be disposed of by consent

Holding

Yes. On 10th March 2021 the parties' advocates filed a consent which the court adopted as its order, issuing conservatory orders preserving the suit properties and compromising the application

Reasoning

All three sets of advocates (for the plaintiffs, the 1st to 12th defendants, and the 13th to 15th defendants) signed the consent. The court, exercising its discretion under the Civil Procedure Act to encourage settlement, adopted the consent as an order of the court and deemed the application heard and determined, with costs reserved to the cause. No adjudication on the merits of the injunction grounds was undertaken.

p. 3

Legal principles established

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  • A consent duly proffered by parties' advocates may be adopted as an order of the court, thereby disposing of an interlocutory application without contested hearing

Court orders

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  1. 1.Conservatory orders issued in respect of the suit properties prohibiting any activities that may either damage or cause waste on the suit properties
  2. 2.The application dated 8.2.2021 compromised upon the consent terms
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(c) and 63(e)
  • Constitution of Kenya, 2010Articles 22, 40, 162 and 165
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(c) and (e) of the Civil Procedure Act and Articles 22, 40, 162 and 165 of the Constitution of Kenya

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, "Phineas Ngaku Murungi & 6 others v Riungu Kaminchi & 14 others [2021] KEELC 4101 (KLR)", Case Analysis (2021). Not stated in judgment (Notice of Motion dated 8.2.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4101/eng@2021-03-10

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