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ELCPartially AllowedNot stated in the judgment (Machakos ELC, Notice of Motion dated 11th September 2022)· [2023] KEELC 400 (KLR)

Ndwiko (Administrator of the Estate of the Late Peter Ndolo Ndwika) v Kavatha & 5 others (Environment & Land Case E068 of 2022) [2023] KEELC 400 (KLR)

Environment and Land Court
25 January 2023
3,058 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Machakos court froze dealings on disputed Mavoko land for its registered owner, but refused to demolish the occupiers' buildings before hearing their side.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 11th September 2022 by the Plaintiff, administrator of the estate of the late Peter Ndolo Ndwiko, registered proprietor of L.R. No. Mavoko Town Block 3/2840. The Plaintiff sought a temporary injunction restraining the Defendants from trespassing on, transferring, alienating or interfering with the suit property, plus a mandatory injunction to demolish structures erected on 6th September 2022, and police oversight of enforcement. The 1st and 2nd Defendants claimed the property had been gifted by the deceased to their late father, Jonathan Kavatha Ndolo, and that they had long been in occupation; the 3rd and 4th Defendants claimed purchase of ten acres from the same Jonathan Kavatha, contending the gift removed the land from the estate; the 5th and 6th Defendants did not respond. Applying the Giella v Cassman Brown principles and the prima facie case test in Mrao v First American Bank, the court found the Plaintiff had shown registered title and administration of the deceased's sealed will, while the Defendants produced no evidence of when, or that, a gift was made, and none of possession. Irreparable injury was found in the risk of third-party rights being created, and the balance of convenience favoured the registered title. The temporary injunction and police oversight orders issued, with costs in the cause. The mandatory injunction was refused because granting it would effectively allow the plaint's eviction prayer without hearing the Defendants.

Key legal issues

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01

Temporary injunction threshold

Holding

The Applicant established a prima facie case with probability of success, irreparable injury and balance of convenience in his favour

Reasoning

The certificate of official search showed registration in the name of Peter Ndwiko Ndolo and the Applicant held letters of administration with will annexed, sealed by the High Court. There was no evidence of the alleged gift to the Defendants' father, nor evidence of their possession. Damages would not suffice if third-party rights were created over the land, and title lay with the Plaintiff's late father, tilting convenience toward the Plaintiff.

p. 5
02

Mandatory injunction

Holding

Refused; interlocutory mandatory relief cannot be granted where it would dispose of the claim unheard

Reasoning

A mandatory injunction is granted sparingly and only in the clearest cases. The Plaintiff sought eviction in the plaint; granting the mandatory injunction at interlocutory stage would allow the plaint's prayers without giving the Defendants a hearing, offending the sacrosanct right to be heard under the Constitution 2010 and substantive justice.

p. 6
03

Alleged gift inter vivos of suit property

Holding

Not established at the interlocutory stage; no evidence of when or that the gift occurred

Reasoning

The Defendants relied on an alleged gift to their late father and an email of 8th September 2020, but did not state when the gift was made, and no evidence showed the gift occurred. The deceased's 1984 will bequeathed the land to the Plaintiff, conditional only upon the Plaintiff not surviving him. The claim of a gift was therefore preliminary and unsupported.

p. 5

Legal principles established

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  • A mandatory injunction can only issue in the clearest of cases and will not be granted where it would deny the respondent a hearing
  • Registration under Section 27 of the (repealed) Registered Land Act vested absolute ownership, a position maintained under Section 26 of the Land Registration Act

Court orders

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  1. 1.Temporary injunction restraining the Defendants from trespassing, transferring, alienating, disposing, leasing, constructing and interfering in any manner with L.R. No. Mavoko Town Block 3/2840 pending the hearing and determination of the suit.
  2. 2.The OCS, Machakos Police Station to oversee enforcement of the orders and ensure no breach of peace.
  3. 3.Costs of the application shall be in the cause.

Authorities

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Legislation

  • Evidence ActSection 106B
  • Law of Succession ActSection 45
  • Constitution of Kenya, 2010Article 40 (property rights); right to be heard
  • Registered Land Act (repealed)Section 27
  • Land Registration Act No. 3 of 2012Section 26

Cases cited (8)

  • Giella vs. Cassman Brown & Co. Ltd
    [1973] EA 358 (also cited as [1973] EA 38)
  • Mrao Ltd vs. First American Bank of Kenya & 2 Others
    [2003] eKLR
  • In Re Estate of the Late Gedion Manthi Nzioka (deceased)
    [2015] eKLR
  • Paul Itotia David vs. Muthio Nzioki
    [2022] eKLR
  • Robert Ng'ang'a Marabu & Another vs Julius Mboya Munyora & 3 Others
    [2015] eKLR
  • Ahmed Ibrahim Suleiman vs Noor Khamis Surur
    [2015] eKLR
  • East African Industries vs. Trufoods
    [1972] EA 420
  • Airland Tours & Travel Limited vs. National Industrial Credit Bank
    Nairobi (Milimani) HCCC No. 1234 of 2002
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (temporary and mandatory injunction application)

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, "Ndwiko (Administrator of the Estate of the Late Peter Ndolo Ndwika) v Kavatha & 5 others (Environment & Land Case E068 of 2022) [2023] KEELC 400 (KLR)", Case Analysis (2023). Not stated in the judgment (Machakos ELC, Notice of Motion dated 11th September 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/400/eng@2023-01-25

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