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ELCOtherNot stated in judgment (Makueni ELC suit)· [2021] KEELC 4552 (KLR)

Joseph Musyoki Mwania v Musyoki Nzivu [2021] KEELC 4552 (KLR)

Environment and Land Court
29 January 2021
CMC. G. Mbogo
1,213 words in judgment
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The bottom line

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A Makueni land buyer asking for an injunction got only a status quo order because he ignored the other side's long-standing occupation and succession issues.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Makueni on the Plaintiff's notice of motion dated 16th July 2020 seeking a temporary injunction restraining the Defendant from trespassing on or interfering with the Plaintiff's asserted ownership, possession, use and occupation of 3.29 acres of Nzaui/Nziu/41, which he said he bought from Monicah Nzula Mwaiwa on 30th September 2017. The application was brought under Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act and was opposed by grounds of opposition filed on 26th October 2020. The Defendant contended that he had purchased the same parcel from Stanlaus Mwanthi Nzivu in January 2012 and had been in occupation since then; that an injunction cannot restrain what has already happened (citing Nganda Kalandi v Timothy Mutinda Nzioka); and that the Plaintiff's purchase from a person without letters of administration offended Sections 55 and 71 of the Law of Succession Act and amounted to intermeddling with a deceased person's estate, disentitling him from equitable relief. The Plaintiff relied on Giella v Cassman Brown and two Ugandan authorities on the purpose of temporary injunctions and balance of inconvenience. Only the Plaintiff filed written submissions. The court found the Plaintiff silent on the Defendant's claimed occupation since 2012, on when the complained-of act occurred, and on the lack of letters of administration of his vendor. Holding that the Giella threshold was not satisfied for an injunction, the court instead granted an order maintaining the status quo as at the time of filing the suit, with costs in the cause. The substantive suit remains pending; the application was neither allowed outright nor dismissed.

Key legal issues

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01

Whether the Plaintiff established a prima facie case entitling him to a temporary injunction

Holding

No; the Plaintiff failed to address material issues raised by the Defendant, notably the Defendant's occupation since 2012 and the sale by a person without letters of administration, so the Giella threshold was not satisfied

Reasoning

The court compared the application and affidavit with the grounds of opposition and found the Plaintiff silent on when the complained-of act occurred, on the Defendant's claim of possession since 2012, and on the lack of letters of administration of his vendor. These omissions undermined the claimed prima facie case and the appropriateness of an injunction.

p. 2
02

What interim relief should issue pending the hearing of the suit

Holding

An order maintaining the status quo as at the date of filing the suit

Reasoning

Rather than an injunction, which would have restrained what the Defendant alleged had already occurred since 2012, the court opted to freeze the position as at filing. This preserves the subject matter for determination at the hearing while avoiding restraining conduct that had allegedly long preceded the suit.

p. 2

Legal principles established

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  • Where a party seeking an interlocutory injunction is silent on material contentions - such as prior occupation and a defective sale by a person without letters of administration - the appropriate interim order is preservation of the status quo as at filing of the suit
  • The principles for the grant of an interlocutory injunction are those in Giella v Cassman Brown & Co Ltd

Court orders

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  1. 1.An order of status quo as at the time of filing the suit be maintained pending the hearing and determination of the suit
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 and 4
  • Civil Procedure ActSection 3A
  • Law of Succession ActSections 55 and 71

Cases cited (4)

  • Giella Vs Cassman Brown Ltd
    1973 E.A 358
  • Nganda Kalandi Vs Timothy Mutinda Nzioka
    CMC No. 82 of 2009
  • Osuna Otwani V Abdul Ziwa
    Kampala High Court Civil Suit No. 246 of 1994 [1994] III KALR 28
  • Ugantico Supermarket V Registrar of Titles & others
    Kampala High Court Civil Suit No. 256 of 1993 [1994] V KALR
Jurisdiction invoked
Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules; Section 3A of the Civil Procedure Act (Cap 21)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Joseph Musyoki Mwania v Musyoki Nzivu [2021] KEELC 4552 (KLR)", Case Analysis (2021). Not stated in judgment (Makueni ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4552/eng@2021-01-29

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