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ELCPartially AllowedNot stated in judgment· [2022] KEELC 1814 (KLR)

Mwambaji Kailo Mtuto v Fredrick Ndune Japhet & another [2022] KEELC 1814 (KLR)

Environment and Land Court
4 February 2022
1,034 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a challenge to the plaintiff's right to sue and stopped the defendants from interfering with his adjudicated land pending trial.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M.A. Odeny, J) determined together a Notice of Motion dated 19th June 2021 by which the Plaintiff sought an interlocutory injunction restraining the Defendants from trespassing on, evicting persons from, surveying, occupying or alienating Plot No. 354 Mikahani/Mawema Bomu/Chonyi Adjudication Section, and a Preliminary Objection dated 28th June 2021 contending that the suit was bad in law, misconceived, an abuse of process, and that the Plaintiff lacked locus standi because he sued as a son of the deceased initial owner without letters of administration. The court disposed of both by written submissions. Applying Mukisa Biscuit and Lemitei Ole Koros, the court held that a preliminary objection must be a pure point of law and cannot rest on contested facts. Since the pleadings showed that the land was never registered in the deceased's name, and that the adjudication committee had entered the Plaintiff jointly with his cousin Konde Mwavivi Konde as joint owners, the objection failed. The court dismissed it with costs to the Plaintiff. On the application, the court found the Plaintiff had established a prima facie case and, in the interest of justice, granted the injunction as prayed to preserve the substratum of the suit, plus costs of the application. The ruling was delivered online pursuant to Covid-19 directives.

Key legal issues

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01

Whether the Plaintiff, suing as a son of the alleged initial (deceased) owner without letters of administration, has locus standi

Holding

The Preliminary Objection fails because the pleadings show the land was adjudicated and entered in the Plaintiff's name jointly with his cousin, not registered in the deceased's name

Reasoning

The Defendant argued the Plaintiff sued as a son of a deceased initial owner without obtaining letters of administration. The court examined the pleadings, which showed no registration of the land in the deceased's name; rather the adjudication committee entered the Plaintiff's name jointly with his cousin as joint owners. Since the locus question required examination of contested facts rather than a pure point of law, the objection could not succeed.

p. 2
02

Whether an interlocutory injunction should issue to preserve the suit property

Holding

The Plaintiff established a prima facie case; an injunction was granted to preserve the substratum of the suit

Reasoning

The Plaintiff deponed that he is the registered and/or beneficial owner and that adjudication affirmed his ownership jointly with his cousin, while the Defendants continuously interfered with the land with threats of eviction. The court found it in the interest of justice to preserve the substratum of the case and granted the injunction as prayed, holding that a prima facie case had been established.

p. 2

Legal principles established

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  • A preliminary objection can only be raised on a pure point of law, not where facts are in contest
  • Where facts are contested, the issue falls outside the ambit of a preliminary objection

Court orders

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  1. 1.The Preliminary Objection is dismissed with costs to the Plaintiff
  2. 2.An injunction restraining the Defendants, their servants, agents, family members and/or employees from trespassing, evicting, surveying, occupying, dealing with or alienating Plot No. 354 Mikahani/Mawema Bomu/Chonyi Adjudication Section pending hearing and determination of the suit
  3. 3.Costs of the application to the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 [1]

Cases cited (2)

  • Mukisa Biscuit Manufactures Company Limited vs West Distributors Ltd
    (1969) EA 696
  • Lemitei Ole Koros & another v Attorney General & 3 others
    (2016) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land; suit concerns Plot No. 354 Mikahani/Mawema Bomu/Chonyi Adjudication Section

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, "Mwambaji Kailo Mtuto v Fredrick Ndune Japhet & another [2022] KEELC 1814 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1814/eng@2022-02-04

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