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ELCAllowedEnvironment & Land Case 24 of 2016· [2022] KEELC 15611 (KLR)

Mukabi (Suing on his own Behalf and on Behalf of members of Gekara Clan) v Mbugi & 26 others

Environment and Land Court
22 November 2022
AKA K Kaniaru
3,054 words in judgment
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The bottom line

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Kenya's Environment and Land Court froze further dealings on subdivided clan land until the ownership dispute is fully heard and decided.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Embu (Kaniaru J) determined a notice of motion dated April 27, 2021 by the plaintiff, suing on his own behalf and on behalf of the Gekara Clan, in a suit challenging the withdrawal of Minister's Appeal No 113 of 1999 and the subsequent subdivision and transfer of parcel Mbeere/Mbita/2579 to the defendants. The plaintiff sought six prayers; the defendants did not oppose prayers 1, 2, 3 and 5 but opposed the prayers for inhibition of dealings with the resultant parcels (5466-5488) and for costs. The 3rd to 25th defendants opposed through a replying affidavit by Josephat Nyaga Mukembo, arguing the application was incompetent, disclosed no cause of action, and sought to overturn a concluded Minister's appeal; in submissions they added objections on limitation, forum and locus standi. The court declined to determine those preliminary issues as they were not raised by preliminary objection or application, holding they were best left to trial. Applying section 68 of the Land Registration Act and the three conditions drawn from Rosemary Wanjiku Njigi v Nancy Munjiru Ngige (risk of alienation, suit rendered nugatory, arguable case), the court found all conditions met: the subdivided land was at risk of further alienation, the suit would be nugatory without preservation, and the plaintiff had an arguable case. Balancing prejudice under the lower-risk-of-injustice principle (Films Rover International), the court allowed the application, ordered registration of an inhibition over the resultant subdivisions pending determination, and ordered costs of the application to be in the cause.

Key legal issues

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01

Whether an order of inhibition should issue over the resultant subdivisions of Mbeere/Mbita/2579

Holding

Application allowed; inhibition registered over the resultant subdivisions pending hearing and determination of the suit

Reasoning

The court applied the three conditions from Rosemary Wanjiku Njigi v Nancy Munjiru Ngige: risk of alienation, suit rendered nugatory, and arguable case. The land had been subdivided and transferred to defendants; further alienation was possible, which would defeat the suit. The applicant, representing the Gekara clan, had ventilated the dispute at tribunal level and filed the impugned Minister's appeal. Balancing prejudice, the greater risk fell on the plaintiff if preservation was denied.

p. 6
02

Whether preliminary issues raised in submissions (limitation, lack of locus standi, wrong forum) should be determined at the interlocutory stage

Holding

No; those issues were not raised by preliminary objection or application and are best determined at trial

Reasoning

The defendants challenged the plaintiff's mode of moving the court, time bar and locus standi only in submissions. The court noted these were not raised in the response nor through a preliminary objection, and confined the ruling to the inhibition application, deferring the preliminary issues to trial.

p. 4

Legal principles established

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  • The purpose of an order of inhibition is to preserve suit property from alienation pending determination of the action.
  • Conditions for inhibition: risk of disposal/alienation, refusal would render suit nugatory, and the applicant has an arguable case.
  • In interlocutory preservation applications the court takes the lower risk of injustice.

Court orders

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  1. 1.An inhibition be registered against the resultant subdivisions of suit parcel of land Mbeere/Mbita/2579 pending hearing and determination of the suit
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 10
  • Civil Procedure RulesOrder 8 rules 3 and 5
  • Civil Procedure RulesOrder 5 rule 17
  • Civil Procedure Actsection 3A
  • Land Registration Actsection 68
  • Land Disputes Tribunal Actsection 8

Cases cited (7)

  • Naftali Ruthi Kinyua v Patrick Thuita Gachure & Another
    (2015) eKLR

    Preservation of suit properties pending hearing and determination of the suit (lis pendens)

  • Philip Mwangi Githinji v Grace Wakarima Githinji
    [2004] eKLR

    Respondents' position on limitation and available remedies

  • In re Estate of William Patrick Mugane (Deceased)
    [2022] eKLR

    Relied on by respondents in support of their submissions

  • Rosemary Wanjiku Njigi v Nancy Munjiru Ngige
    [2013] eKLR

    Conditions for grant of an order of inhibition

  • Japhet Kaimenyi M'ndatho v M'ndatho M'mbwiria
    [2012] eKLR

    Conditions for inhibition: risk of alienation, suit rendered nugatory, arguable case

  • Films Rover International & Others v Cannon Films Sales Ltd
    1986 3 All ER 772

    Lower risk of injustice principle in preservation applications

  • Dorcas Muthoni & 2 others v Michael Ireri Ngari
    [2016] eKLR

    Approval of Films Rover lower-risk-of-injustice principle

Jurisdiction invoked
Environment and Land Court jurisdiction; application under Order 1 rule 10, Order 8 rules 3 and 5, Order 5 rule 17 of the Civil Procedure Rules, section 3A Civil Procedure Act and section 68 Land Registration Act 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mukabi (Suing on his own Behalf and on Behalf of members of Gekara Clan) v Mbugi & 26 others", Case Analysis (2022). Environment & Land Case 24 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15611/eng@2022-11-22

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