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)
The bottom line
#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
#Executive summary
#Key legal issues
#Temporary injunction threshold
The Applicant established a prima facie case with probability of success, irreparable injury and balance of convenience in his favour
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.
Mandatory injunction
Refused; interlocutory mandatory relief cannot be granted where it would dispose of the claim unheard
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.
Alleged gift inter vivos of suit property
Not established at the interlocutory stage; no evidence of when or that the gift occurred
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.
Legal principles established
#- 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- Registration under Section 27 of the (repealed) Registered Land Act vested absolute ownership, a position maintained under Section 26 of the Land Registration Act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
#- 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.The OCS, Machakos Police Station to oversee enforcement of the orders and ensure no breach of peace.
- 3.Costs of the application shall be in the cause.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (temporary and mandatory injunction application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.