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ELCPartially AllowedNot stated in the extract (appeal filed August 25, 2021)· [2022] KEELC 2450 (KLR)

Mbiriga v Mutuamwari & 9 others (Environment and Land Appeal E097 of 2021) [2022] KEELC 2450 (KLR)

Environment and Land Court
20 July 2022
1,753 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 protected a landowner from construction and subdivision of disputed land, but only for one year pending appeal.

What this practically means

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Executive summary

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This was an application dated August 27, 2021 in which the applicant, Stanley Kithinji Mbiriga, sought a temporary injunction pending appeal restraining the respondents from constructing, alienating or interfering with L.R No. 1106/Ruiri/Rwarera Adjudication section. The application was precipitated by a ruling of August 10, 2021 in which the trial court dismissed the primary suit (founded on a plaint dated October 5, 2020 alleging fraudulent and illegal subdivision of the applicant's land) for lack of jurisdiction on account of non-exhaustion of internal mechanisms under the Land Adjudication Act, despite a consent to sue on record. The 9th and 10th respondents opposed through a ground of opposition and written submissions, contending the application was defective, that the applicant had not established a prima facie case, and that the balance of convenience favoured them since they occupied the resultant subdivided parcels. The court applied the injunction-pending-appeal principles (Giella, Madhu Paper, Patricia Njeri, Mrao, Nguruman) and found the appeal arguable, since it raised the question whether the dispute fell outside the court's jurisdiction. The applicant's ownership right appeared protectable and under threat; the fraud averments were uncontroverted, and the respondents' written submissions could not substitute for evidence (Daniel Toroitich Arap Moi). The court allowed the application in terms of prayers 3 and 4, with the injunction to subsist for one year only, and directed the parties to set down the appeal for hearing within six months. Judgment delivered on July 20, 2022 by C.K. Nzili, ELC Judge.

Key legal issues

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01

Prima facie case with a protectable right

Holding

The applicant established a protectable ownership right under threat; the appeal raises arguable points on whether the dispute falls under internal Land Adjudication Act mechanisms or the court's jurisdiction

Reasoning

The court reviewed the plaint and the impugned application and found the claim of fraud and illegal subdivision uncontroverted. The appeal questions whether the trial court correctly declined jurisdiction for non-exhaustion of internal mechanisms despite an existing consent to sue. This supports an arguable appeal and a prima facie case per Mrao Ltd.

p. 4
02

Irreparable harm and uncontroverted facts

Holding

The averments of fraud, illegality, collusion and invasion by the 9th-10th respondents were uncontroverted; written submissions do not amount to pleadings or evidence

Reasoning

The court noted the respondents merely filed written submissions, which per Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi cannot substitute evidence or pleadings. The respondents did not deny the decision in the applicant's favour removing a large chunk of his land, so the factual basis of the claim remained unchallenged.

p. 4
03

Compliance with Order 42 Rule 6(6) proviso

Holding

The appeal filed within the statutory period under Section 79(9) Civil Procedure Act satisfied the proviso to Order 42 Rule 6(6)

Reasoning

The ruling was delivered August 10, 2021 and the appeal was filed on August 28, 2021, within time under Section 79(9) of the Civil Procedure Act, so the preconditions to the exercise of the appellate injunction jurisdiction under Order 42 Rule 6 were met.

p. 3

Legal principles established

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  • An applicant for an injunction pending appeal must demonstrate an arguable appeal and satisfy the requirements for temporary injunctive relief, with the objective of safeguarding the appellant's rights by maintaining the status quo

Court orders

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  1. 1.Temporary injunction granted in terms of prayers no. 3 and 4 of the application, restraining the respondents from constructing, alienating or interfering with L.R No. 1106/Ruiri/Rwarera Adjudication section, to subsist for one year only
  2. 2.Parties directed to set down the appeal for hearing within 6 months

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6 (including proviso to Rule 6(6))
  • Civil Procedure ActSection 79(9)
  • Land Adjudication ActInternal dispute resolution mechanisms

Cases cited (12)

  • Giella vs Cassman Brown & Co. Ltd
    (1933) E.A 358
  • American Cynamid Co. vs Ethicom Ltd
    (1975) AER 504
  • Camus Oil vs the Minister of Energy
    (1983) 1IR 88
  • Mbuthia vs Jimba Credit Corporation Ltd
    (1988) KLR 1
  • Mrao Ltd vs First American Bank of Kenya Ltd & 3 others
    (2003) KLR 125
  • Njenga vs Njenga
    (1991) KLR 401
  • Panari Enterprise Ltd vs Lijoodi & 2 others
    (2014) eKLR
  • George Ndegwa Mwangi & 3 others vs Ruth Wakapa and 6 others
    (2020) eKLR
  • Madhu Paper International Ltd vs Kerr & 3 others
    (1985) KLR 840
  • Patricia Njeri & 3 others vs National Museum of Kenya
    (2004) eKLR
  • Nguruman Ltd vs Jan Bonde Neilsen & 2 others
    (2014) eKLR
  • Daniel Toroitich Arap Moi vs Mwangi Stephen Muriithi
    (2014) eKLR
On appeal from
Trial court (subordinate court, not named)
Not stated (primary suit based on plaint dated October 5, 2020)
Jurisdiction invoked
Order 42 Rule 6 Civil Procedure Rules and Section 79(9) Civil Procedure Act (appellate jurisdiction of the High Court/ELC)

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, "Mbiriga v Mutuamwari & 9 others (Environment and Land Appeal E097 of 2021) [2022] KEELC 2450 (KLR)", Case Analysis (2022). Not stated in the extract (appeal filed August 25, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2450/eng@2022-07-20

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