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ELCDismissedNot stated in the judgment (Notice of Motion dated 23rd March, 2018 in a Petition)· [2022] KEELC 3937 (KLR)

Mazera & 3 others (Suing on their own behalf and on behalf of their families and all the members and residents of the Rabai Community, living on Plot Kilifi/Kinung’una/15 situated in Ribe Location, Kinung’una area) v Masinde & 7 others (Environment & Land Petition 4 of 2017) [2022] KEELC 3937 (KLR)

Environment and Land Court
28 July 2022
JOJ. O. Olola
1,198 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to stop landowners from dealing with their plots because the applicants couldn't prove a strong case, ruling land adjudication objections belong in the adjudication process.

What this practically means

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Executive summary

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By a Notice of Motion dated 23rd March 2018, four Petitioners sought a temporary injunction restraining the 1st, 2nd and 3rd Respondents from sub-dividing, selling, transferring, fencing, farming or otherwise interfering with Plot No. Kilifi/Kinung'una/15 pending determination of their Petition. The application was supported by an affidavit of the 3rd Petitioner, Gibson Ndenge Chai, on grounds that the Respondents' addresses were unknown, that the 2nd Respondent had been visiting the land with surveyors and police officers indicating intended sub-division or sale, and that the Petitioners had long cultivated and grazed the land. The 2nd Respondent, Hamisi Ambale Bugo, and the 3rd Respondent, John Mugo, opposed, asserting that the land was sub-divided through an adjudication process, that the Petitioners had declined to pay for transfers and collect their titles, and that the suit was malicious and discriminatory. The claim against the 1st Respondent had been withdrawn on 22nd January 2021, and six other Respondents did not participate. Justice J. O. Olola, sitting at Nyeri, applied the Giella v Cassman Brown conditions and Order 40 Rule 1 of the Civil Procedure Rules. He found the Respondents' parcels resulted from a 2010 adjudication, that the Petitioners alleged no trespass and identified no parcel owned by the 2nd Respondent, and that the land adjudication process has in-built objection mechanisms. Finding no demonstrated basis for an injunction, the court dismissed the motion with costs on 28th July 2022.

Key legal issues

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01

Whether the Petitioners established a prima facie case and other grounds for a temporary injunction over Plot No. Kilifi/Kinung'una/15

Holding

No injunction was granted: the Petitioners did not show the Respondents had intruded or trespassed on their parcels, did not identify any parcel owned by the 2nd Respondent, and produced nothing showing the subject properties were hitherto community land.

Reasoning

The court applied the Giella v Cassman Brown conditions and Order 40 Rule 1 CPR, which requires proof that property in dispute is in danger of being wasted, damaged or alienated. The Respondents' parcels resulted from a 2010 adjudication process, and the Petitioners' real grievance against the 3rd Respondent was merely that he was not a resident of Kinung'una. Disputes about adjudication should be pursued through the adjudication objection mechanisms.

p. 4

Legal principles established

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  • The conditions for granting an interlocutory injunction are those in Giella v Cassman Brown: prima facie case with probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience.
  • The land adjudication process has in-built mechanisms through which objections to incorrect adjudication may be raised.

Court orders

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  1. 1.The Motion dated 22nd March, 2018 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (1)

  • Giella v Cassman Brown & Company Limited
    (1983) EA 358
Jurisdiction invoked
Original constitutional petition jurisdiction of the Environment and Land Court; interim relief sought under Order 40 Rule 1 of the Civil Procedure Rules

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, "Mazera & 3 others (Suing on their own behalf and on behalf of their families and all the members and residents of the Rabai Community, living on Plot Kilifi/Kinung’una/15 situated in Ribe Location, Kinung’una area) v Masinde & 7 others (Environment & Land Petition 4 of 2017) [2022] KEELC 3937 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated 23rd March, 2018 in a Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3937/eng@2022-07-28

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