M’ikiamba & 4 others v Ekabu & 2 others (Environment and Land Appeal E008 of 2020) [2022] KEELC 3377 (KLR)
The bottom line
#The Environment and Land Court refused to protect land claimants because they challenged a registered title deed the wrong way and sued the government for an injunction, which the law forbids.
What this practically means
#Executive summary
#Key legal issues
#Competence of the application due to defective representation on record
The application was filed by a law firm improperly before court because Owang & Associates did not comply with order 9 rules 6 & 9 of the Civil Procedure Rules and did not take remedial action after the issue was raised
The court noted that a prior application by the incoming firm had been struck out on February 3, 2022, and that even if there was a consent to come on record it was not filed or endorsed as a court order. The 1st respondent raised the defect but the applicants took no remedial action. The court cited John Langat v Kipkemoi Tere & 2 others and held the application was filed by a law firm improperly before the court.
Whether an injunction can issue against the 2nd and 3rd respondents
No. The application offends section 16(2) of the Government Proceedings Act and order 29 of the Civil Procedure Rules because the 2nd respondent is a government officer and the 3rd respondent is the chief legal adviser to the government
Section 16(2) bars granting an injunction against an officer of government where the effect would be relief against the government, and order 29 rule 2(2) provides that no injunction shall issue against the government. Following Royal Media v Telkom Kenya, where a cause of action lies directly against the government no injunction can issue; the appropriate remedy is declaratory relief.
Whether the applicants satisfied the conditions for an injunction pending appeal
No. The applicants did not demonstrate an arguable appeal, a demonstrable irreparable injury, or any established right, having produced no letters of administration, no searches, no authenticated evidence of occupation, and the 1st respondent holds an unchallenged title deed
The applicants produced no letters of administration or proof of recorded interests, no official searches on registration, and only unauthenticated photographs. The court held that once a title deed is issued it can only be impeached under sections 24, 25 and 26 of the Land Registration Act, which the applicants had not done, so granting an injunction against a bonafide title holder would be acting in vain.
Legal principles established
#- No order of injunction may issue against the government or an officer of government where the effect would be to give relief against the government; the appropriate remedy is declaratory relief
- Once a title deed is issued, it can only be impeached under the Land Registration Act (sections 24, 25 & 26)
- Submissions however forceful cannot replace pleadings or evidence
- An applicant for an injunction pending appeal must demonstrate an arguable appeal likely to be rendered nugatory, on top of the Giella v Cassman Brown principles
- A party seeking to come on record post-judgment must comply with order 9 rules 6 & 9 of the Civil Procedure Rules, including obtaining leave and filing the consent for endorsement as a court order
Court orders
#- 1.The application dated March 9, 2022 was dismissed with costs
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court to grant an injunction pending appeal; the intended appeal lies to the Court of Appeal against this court's dismissal of an appeal (from the District Land Adjudication and Settlement Officer) on December 15, 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M’ikiamba & 4 others v Ekabu & 2 others (Environment and Land Appeal E008 of 2020) [2022] KEELC 3377 (KLR)", Case Analysis (2022). Not stated in the judgment (application dated March 9, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3377/eng@2022-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.