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ELCDismissedEnvironment & Land Case 208 of 2019· [2022] KEELC 13736 (KLR)

Mwende v Kalume & another

Environment and Land Court
26 October 2022
NMN.A. Matheka
1,642 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Mombasa court refused a school owner's bid to rebuild on disputed land, ruling she failed to prove a strong enough case for emergency protection.

What this practically means

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Executive summary

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This is a ruling by N.A. Matheka J of the Environment and Land Court at Mombasa on the plaintiff's notice of motion dated July 29, 2021 in Environment & Land Case 208 of 2019. Christine Mwende, who operates Jambo Jipya School on Plot No. MN/III/9476, sought leave to erect replacement structures after the demolition of school buildings on July 24, 2021, a temporary injunction restraining the defendants from intimidation, harassment, eviction or interference with the suit property, consolidation of the suit with Mombasa ELC No. 299 of 2013, and a site visit. The 1st defendant, Daniel Mbogo Kalume, asserted he was the registered proprietor of Plot MN/III/9476, that the plaintiff claimed a different plot in a different registration section, that her structures were illegal and demolished after an enforcement notice, and that a prior tenancy had been determined. The court found the plaintiff had not established a prima facie case, noting she sought to build on a plot different from the one she claimed to have purchased, that the facts were hotly disputed, and that a similar injunction application had been dismissed by Yano J on March 18, 2021. On consolidation, the court applied the principles in Korean United Church, Nyati Security Guards and Law Society of Kenya, and found the prayers and cause of action in ELC No. 299 of 2013, a representative suit, to be different. The application was dismissed with costs, with directions to comply with Order 11 and set the suit down for hearing.

Key legal issues

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01

Prima facie case for temporary injunction and replacement structures

Holding

The plaintiff failed to establish a prima facie case warranting the orders of construction and temporary injunction

Reasoning

The plaintiff claimed to have purchased plot MN/II/4427 in registration Section II of Mainland North, yet sought to build on plot MN/III/9476 in Section III, of which the 1st defendant held a certificate of title. The 1st defendant asserted prior tenancy, its termination, and an enforcement notice from the County Government. Given these disputed facts and a prior dismissed injunction application, the court could not make findings of finality and declined the interlocutory relief.

02

Consolidation with ELC No. 299 of 2013

Holding

Consolidation refused because the prayers and causes of action in the two suits are different

Reasoning

The court recited the principles that consolidation serves the overriding objective of saving costs, time and effort, but is undesirable in certain situations. On perusing the pleadings in ELC No. 299 of 2013, it found that suit to be a representative suit with a different cause of action, and that any orders therein could be enforced in that suit. Consolidation was therefore not merited.

p. 3

Legal principles established

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  • An applicant for a temporary injunction must establish a prima facie case with a likelihood of success; where facts are seriously disputed, the court cannot make findings of finality at the interlocutory stage
  • Consolidation of suits is warranted only where it serves the overriding objective and the suits are connected; it is undesirable where the actions are distinct and represented by different parties

Court orders

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  1. 1.The application dated July 29, 2021 is dismissed with costs
  2. 2.Parties are advised to comply with Order 11 and set the suit down for hearing

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A and 63(e)
  • Civil Procedure Rules, 2010Order 3 Rules 5 and 6; Order 4 Rule 1(1)(a) and 2(1); Order 51 Rule 1

Cases cited (3)

  • Korean United Church of Kenya & 3 Others v Seng Ha Sang
    (2014) eKLR

    Consolidation of suits serves the overriding objective - expeditious, proportionate disposal, saving costs, time and effort

  • Nyati Security Guards & Services Ltd v Municipal Council of Mombasa
    (2004) eKLR

    Situations where consolidation is undesirable, e.g. plaintiffs represented by different advocates

  • Law Society of Kenya v The Center for Human Rights and Democracy
    Supreme Court of Kenya Petition No. 14 of 2013

    Consolidation facilitates efficient, expeditious disposal and must not confer undue advantage or disadvantage

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act; application brought under Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Orders 3, 4 and 51 of the Civil Procedure Rules, 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, "Mwende v Kalume & another", Case Analysis (2022). Environment & Land Case 208 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13736/eng@2022-10-26

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