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ELCPartially AllowedNot stated in excerpt· [2021] KEELC 4269 (KLR)

Rhoda Muthoki Kioko Wambua & another v Monica Nzilani Kimuya & 3 others [2021] KEELC 4269 (KLR)

Environment and Land Court
12 February 2021
1,938 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to stop a property sub-division that had already happened, confirming that consent orders bind parties unless formally set aside.

What this practically means

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Executive summary

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The Plaintiffs, purchasers of portions of Agricultural Plot No. 1622 Malili Ranch (now registered as Konza North/Konza North Block 2 (Malili)/275 in the name of the 2nd Defendant), moved the court by Notice of Motion dated 15th November, 2019 seeking an interim injunction restraining the 2nd Defendant from sub-dividing, selling, transferring or interfering with thirteen resultant plots (7663-7675), and leave to amend the Plaint to correct the property description. They alleged the sub-division apportioned them smaller portions than purchased. The Defendants responded that the sub-division had been carried out pursuant to a consent order recorded on 19th July, 2018, which the Plaintiffs never sought to set aside; that title deeds and transfer documents had already been issued and released to beneficiaries; and that the injunction had been overtaken by events. Citing Esso Kenya Ltd v Mark Makwata Okiyo and Cyka Holdings Ltd v Nairobi City County Government, the court held that a temporary injunction cannot restrain what has already happened. It further found that the Plaintiffs, bound by the unchallenged consent order and having produced no evidence of their entitlement to 2 acres and ½ acre respectively, had not established a prima facie case with chances of success. The injunction was refused, but the unopposed prayer for leave to amend the Plaint was allowed, with each party to bear its own costs.

Key legal issues

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01

Whether an injunction can issue to stop a process already concluded

Holding

No; an application for injunction that has been overtaken by events will be dismissed as it serves no practical purpose

Reasoning

The court noted that pursuant to the consent order of 19th July, 2018, the Defendants had already surveyed and sub-divided the suit property and issued title deeds and transfer documents. Relying on Esso Kenya Ltd v Mark Makwata Okiyo and Cyka Holdings Ltd v Nairobi City County Government, the court held that a temporary injunction prevents that which has not yet happened and cannot restrain that which has already happened.

p. 3
02

Effect of the consent order of 19th July, 2018 on the Plaintiffs' claim

Holding

The Plaintiffs, not having sought to set aside the consent, are bound by it; absent an allegation of breach, they have no prima facie case

Reasoning

The consent order adopted by the court directed the Defendants to facilitate survey and sub-division and required the Plaintiffs to meet survey and transfer costs. The Plaintiffs did not dispute the consent nor seek to set it aside, nor allege breach. Having failed to facilitate registration of their portions, it would be speculative to find their rights were violated.

p. 3
03

Leave to amend the Plaint to reflect the correct subject matter

Holding

Leave granted; the amendment is unopposed and corrects an erroneous description of the suit property

Reasoning

The Defendants did not oppose the amendment, and the court observed that the property actually sub-divided pursuant to the consent order was Konza North/Konza North Block 2 (Malili) 275 and not Konza North/Konza North Block 2/1622 as pleaded. The power to allow amendments is intended to enable the court to determine the true substantive merits of the case.

p. 3

Legal principles established

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  • A party is bound by a consent order unless it is set aside; an injunction cannot restrain what has already happened

Court orders

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  1. 1.The Plaintiffs are granted leave to amend the Plaint in terms of the draft Amended Plaint within fourteen (14) days from the date of the Ruling
  2. 2.Each party to bear his own costs

Authorities

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Cases cited (3)

  • Stanley Kirui vs. Westlands Pride Limited
    [2013] eKLR
  • Esso Kenya Limited vs. Mark Makwata Okiyo
    [1992] eKLR
  • Cyka Holdings Limited vs. Nairobi City County Government & 2 others
    [2017] eKLR
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court over land disputes (suit commenced by Plaint dated 21st March, 2018)

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, "Rhoda Muthoki Kioko Wambua & another v Monica Nzilani Kimuya & 3 others [2021] KEELC 4269 (KLR)", Case Analysis (2021). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4269/eng@2021-02-12

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