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ELCDismissedNot stated in judgment (suit instituted by Plaint dated 4th June 2018, Mombasa)· [2022] KEELC 1031 (KLR)

Mzee Adam Makinja & 2 others v Livingstone Ndungu Waithaka & 5 others [2022] KEELC 1031 (KLR)

Environment and Land Court of Kenya
3 March 2022
LNL. L. Naikuni
5,413 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Mombasa court dismissed land occupants' bid for an injunction because they had no documents proving their claimed long-term occupation of the property.

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 Mombasa (Naikuni J) on a Notice of Motion dated 10th May 2021 by the 1st, 2nd and 3rd Plaintiffs/Applicants against the 1st to 6th Defendants/Respondents in an ongoing land dispute over parcel No. 264/I/MN at Bamburi, Mombasa. The applicants sought stay of execution of earlier ex-parte orders, restoration of the pre-eviction status quo, temporary injunctions restraining eviction, harassment and interference, a commissioned valuation report, and interim compensation for losses arising from a demolition and eviction carried out on 9th March 2020 pursuant to orders of 12th February 2020. The 2nd Defendant/Respondent, Ellen Properties Limited, claimed to be the registered owner of subdivided portions of the plot, denied demolishing the applicants' structures, characterized the applicants as squatters, and attacked the authenticity of their photographs. The court framed four issues and applied the Giella v Cassman Brown sequential test. It held the applicants failed to establish a prima facie case, as their claims of long occupation lacked documentary support and their photographs were discredited; that they would suffer no irreparable damage given their admission of eviction; and that the balance of convenience favoured the 2nd Defendant. The stay prayer under Order 42 Rule 6 was held inapplicable since no appeal existed. The application was dismissed with costs to the 2nd Defendant, but the court directed that the status quo be maintained to preserve the suit land pending full trial, fixed the matter for hearing within 90 days, and set a pre-trial conference mention for 4th May 2022. The main suit remains pending.

Key legal issues

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01

Whether the applicants established a prima facie case with a probability of success

Holding

They failed; their claims of long occupation were unsupported by documentary evidence such as searches, titles or sale agreements, and their photographs were discredited

Reasoning

The court applied Mrao v First American Bank and Nguruman v Jan Bonde Nielsen. Although the applicants claimed continuous quiet possession, they produced no official searches, title deeds, sale agreements or mutation forms. Their photographs lacked dates, locations and any visible structures, and their own admission of demolition and eviction undermined their claim of occupation.

p. 6
02

Whether the applicants would suffer irreparable damage not compensable by damages

Holding

They would not; having admitted eviction and demolition leaving rubble, and seeking reinstatement, no irreparable harm was likely

Reasoning

The court held that the applicants' own supporting affidavit admitted eviction and demolition on 9th March 2020. Since there was no prima facie case, the sequential Giella test could not be satisfied, and the balance of convenience tilted in favour of the registered-owner 2nd Defendant.

p. 6
03

Whether the prayer for stay of execution and setting aside of the court's orders under Order 42 Rule 6 was merited

Holding

No; Order 42 Rule 6 was inapplicable as no appeal had been preferred and its ingredients were unmet

Reasoning

The applicants pleaded stay of execution of the orders of 12th February 2020 but advanced no arguments under Order 42 Rule 6. The court found the provision inapplicable on its face and dismissed the argument as misplaced, uninformed and without merit, declining to spend resources on a nullity.

p. 6
04

Who bears the costs of the application

Holding

Costs to the 2nd Defendant/Respondent, borne by the Plaintiffs/Applicants, as costs follow the event

Reasoning

Relying on Section 27(1) of the Civil Procedure Act and the Black Law Dictionary definition of costs, the court held that the 2nd Defendant succeeded and therefore the applicants must bear the costs of the application.

p. 6

Legal principles established

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  • The conditions for grant of an interlocutory injunction are settled in Giella v Cassman Brown and are sequential; failure at the first condition (prima facie case) is fatal
  • He who alleges must prove - a party claiming occupation and possession must produce empirical documentary evidence
  • Costs follow the event under Section 27(1) of the Civil Procedure Act

Court orders

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  1. 1.The Notice of Motion application dated 10th May, 2021 by the 1st, 2nd and 3rd Plaintiffs/Applicants be and is hereby dismissed for lack of merit
  2. 2.In order to preserve the suit land and have peace and tranquility until the suit is heard and determined, the status quo to be maintained
  3. 3.The matter be fixed for hearing within the next ninety (90) days from the date of the ruling, with a mention date on 4th May, 2022 for a pre-trial conference pursuant to Order 11 of the Civil Procedure Rules 2010
  4. 4.The costs of the application awarded to the 2nd Defendant/Respondent, borne by the Plaintiffs/Applicants

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 1B, 3, 3A, 63(e), 27(1), 91
  • Civil Procedure Rules, 2010Order 22 Rule 22, Order 42 Rule 6, Order 40 Rules 1, 2 & 4, Order 51 Rule 1, Order 11
  • Constitution of Kenya, 2010Articles 1, 2, 19, 20, 21, 22, 23, 24, 25, 27, 28, 40, 48, 50, 159
  • Evidence ActSections 107, 109, 120, 119
  • Environment and Land Court Act, No. 19 of 2011Sections 3, 4, 13, 14

Cases cited (13)

  • Giella – Versus – Cassman Brown & Co. Limited
    (1973) E.A. 358
  • Mrao – Versus – First American Bank of Kenya Limited & 2 Others
    (2003) eKLR 125
  • Nguruman Limited – Versus – Jan Bonde Nielsen & 2 Others
    (2014) eKLR
  • Choitram – Versus – Nazari
    (1984) eKLR
  • Cassman – Versus – Sochania
    (1982) eKLR
  • Pennih Mbithe Mbithi – Versus – Kenya Power and Lighting Company Limited
    (2015) eKLR
  • Umoja Rubber Products Limited and 2 Others – Versus – Synergy Industrial Credit Limited and Another
    (2020) eKLR
  • Cyrus Komo – Versus – Hannha Nyambura Gikamu
    (2018) eKLR
  • Samuel Kamau Macharia – Versus – Kenya Commercial Bank Limited, Kenya Commercial Finance Company Limited
    (2003) eKLR
  • Kenya Horticultural Exporters 1977 Limited – Versus – Pape
    1986 KLR 705
  • Kenya Commercial Finance Co. Limited – Versus – Afraha Education Society
    (2001) 1 E.A. 86
  • Hassan Huri – Versus – Abdulrazak Huri Ibrahim
    Court of Appeal (Mombasa) No. 8 of 2015
  • Gaba Investments (K) Limited – Versus – Ellen Properties Limited
    Civil Suit No. 42 of 2021
Jurisdiction invoked
Environment and Land Court Act, No. 19 of 2011 (Sections 3, 4, 13 and 14) and Civil Procedure Act Cap. 21 (Sections 1, 1A, 1B, 3, 3A and 63(e)); Articles 1, 2, 19, 20, 21, 22, 23, 24, 25, 27, 28, 40, 48, 50 and 159 of the Constitution of Kenya, 2010

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, "Mzee Adam Makinja & 2 others v Livingstone Ndungu Waithaka & 5 others [2022] KEELC 1031 (KLR)", Case Analysis (2022). Not stated in judgment (suit instituted by Plaint dated 4th June 2018, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1031/eng@2022-03-03

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