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ELCDismissedNot stated in the judgment (appeal from the lower court; application dated 28.9.2021)· [2022] KEELC 990 (KLR)

Luka Ruteere & 2 others v Marcella Kinaitore Mwimbi [2022] KEELC 990 (KLR)

Environment and Land Court
2 March 2022
1,386 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Meru refused to stop eviction from disputed land because the applicants had already lost twice and showed no strong case on appeal.

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 Meru (C.K. Nzili, ELC Judge) dated 2 March 2022 on the applicants' notice of motion dated 28 September 2021. The court had on 28 July 2021 dismissed the applicants' appeal, affirming the lower court decree in a land dispute between the respondent, the recorded owner, and the applicants who counterclaimed as owners of Parcel No. 1142 Kiengu/Kanjoo on the mistaken belief that parcel numbers ran sequentially. The applicants sought an inhibition order over L.R No. Kiengu/Kanjoo/833 and a temporary injunction restraining eviction or interference pending an intended appeal. The court first allowed the prayer permitting J. Muthomi & Co. Advocates to come on record. On the merits, it held that an inhibition under Section 68 of the Land Registration Act requires good grounds and presupposes registered land, but the applicants produced no current search certificate showing a title under that Act, the land being subject to the Land Adjudication Act Cap 284. Applying the Giella principles as adapted for injunctions pending appeal (Patricia Njeri v National Museum of Kenya) and the Mrao definition of a prima facie case, the court found no prima facie case, no irreparable harm since crops were quantifiable in monetary terms, and the balance of convenience favouring the respondent as recorded owner. The application was dismissed with costs to the respondent, with a rider that the land remain registered in the respondent's name.

Key legal issues

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01

Prima facie case for injunction pending intended appeal

Holding

The applicants failed to establish a prima facie case; the ownership and location dispute had been conclusively determined on expert surveyor evidence in the lower court and affirmed on appeal

Reasoning

The applicants' claim rested on a mistaken belief in sequential numbering of parcels, contradicted by the surveyor's opinion that numbering is fixed at subdivision and is not sequential. Both the lower court and the appeal court found for the respondent on that evidence. With the merits already determined twice, the applicants could not demonstrate an apparently infringed right entitling them to an interlocutory injunction pending a further appeal.

p. 2
02

Irreparable injury

Holding

Any harm is compensable in damages; the photographs showed only farming activities, no developed buildings, and crops are quantifiable in monetary terms

Reasoning

The court examined the photographs attached to the supporting affidavit and found they depicted only crops and farming activity. Since the loss claimed would be measurable and compensable, the second Giella test was not satisfied, reinforcing refusal of the injunctive relief.

p. 2
03

Balance of convenience

Holding

The balance tilts in favour of the respondent, the recorded owner, since the applicants have an alternative parcel available for occupation

Reasoning

The lower court found the applicants' parcel opposite the respondent's. The applicants were under a duty to vacate and occupy their own land, and it was not suggested that land was unavailable. Keeping the rightful owner off her land would cause greater prejudice.

p. 2
04

Availability of inhibition orders under the Land Registration Act

Holding

The court could not grant an inhibition because there was no evidence of a registered title under the Land Registration Act; the land was still held under the Land Adjudication Act

Reasoning

Sections 68-70 of the Land Registration Act presuppose registered land. At the time of the earlier proceedings the parcel was described as an adjudication section parcel under Cap 284. Without a current search certificate proving a title deed, any inhibition or registration-related order would be made in vain.

p. 2

Legal principles established

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  • An inhibition under Section 68 of the Land Registration Act operates like a prohibitory injunction and requires good grounds, since it restrains the registered owner's Article 40 property rights pending determination
  • An applicant for a temporary injunction pending appeal must show the appeal is not frivolous, that refusal would not merely occasion greater hardship, and that refusal would render the appeal nugatory
  • A prima facie case is a right which apparently has been infringed by the opposite party so as to call the other party to rebut it

Court orders

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  1. 1.Prayer 2 of the application allowed, permitting J. Muthomi & Co. Advocates to come on record for the applicants
  2. 2.The application for inhibition and temporary injunction dismissed with costs to the respondent

Authorities

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Legislation

  • Land Registration ActSection 68
  • Land Registration ActSection 69
  • Land Registration ActSection 70
  • Land Registration Act 2012Not specified
  • Land Adjudication Act Cap 284 Laws of KenyaNot specified
  • Constitution of KenyaArticle 40

Cases cited (5)

  • Daniel Gitau Kuria –vs- Muthoni Mbugua Ndumo & 3 Others
    [2021] eKLR
  • Florence Cherugut –vs- Cheptum Murei Annah
    [2022] eKLR
  • Patricia Njeri & 3 Others –vs- National Museum of Kenya
    [2004] eKLR
  • Giella –vs- Cassman Brown
    [1973] E.A 358
  • Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
On appeal from
Lower court (magistrates' court)
Not stated
Jurisdiction invoked
Inherent/appellate jurisdiction of the Environment and Land Court over an intended appeal, with reference to Sections 68-70 of the Land Registration Act and Order 42 Civil Procedure Rules principles

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, "Luka Ruteere & 2 others v Marcella Kinaitore Mwimbi [2022] KEELC 990 (KLR)", Case Analysis (2022). Not stated in the judgment (appeal from the lower court; application dated 28.9.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/990/eng@2022-03-02

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