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ELCPartially AllowedNot stated in judgment (Petition, Machakos ELC)· [2023] KEELC 940 (KLR)

Mutiso & 2 others v Kenya Commercial Bank Limited & 3 others (Environment & Land Petition 15 of 2021) [2023] KEELC 940 (KLR)

Environment and Land Court
21 February 2023
2,164 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked land claimants' request to preserve Athi River parcels, ruling they should have filed a civil suit with evidence, not a constitutional petition.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) on the petitioners' notice of motion dated August 12, 2021 seeking conservatory orders over LR Nos 8784/4 and 8786 at Athi River, and the 2nd respondent's (East African Portland Cement PLC) preliminary objection seeking dismissal of the petition in limine as a bad adverse possession claim against public land held by a state corporation and former mines. The 1st respondent, a chargee owed debts exceeding Kshs 4.8 billion, opposed the application, relying on a court order (Miscellaneous Cause No E 13222 of 2020, Majanja J) permitting it to purchase LR No 8786 as chargee. The court applied Mukisa Biscuits and held the preliminary objection premature because it raised contested questions of fact (EAPCC's status and whether the lands are mines) and because the 2nd respondent had not yet filed an Answer to the Petition. On the conservatory orders, applying the Gatirau Peter Munya thresholds and the definition in Invesco Assurance, the court found the petitioners had not demonstrated a prima facie case: they had previously sought to purchase the suit lands, knew of the charges, admitted the 2nd respondent's proprietorship, and did not identify the over 1000 residents they claimed to represent. The court also declined to interfere with LR No 8786, subject to a valid court order, and noted LR No 8784/4 no longer existed. The preliminary objection was disallowed as premature; the notice of motion was dismissed with costs, the court observing that the petitioners should have filed a proper civil suit with viva voce evidence.

Key legal issues

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01

Whether the preliminary objection founded on sections 41(a)(i) and (ii) of the Limitation of Actions Act (state corporation land and mines) is merited

Holding

The objection was premature and was disallowed

Reasoning

The court applied Mukisa Biscuits on preliminary objections raising pure points of law. The petitioners disputed EAPCC's status as a state corporation and whether the lands were mines, making the objections fact-dependent. Further, the 2nd respondent had not filed an Answer to the Petition to anchor the objection, rendering it premature per Avtar Singh Bhamra.

p. 5
02

Whether conservatory orders should issue restraining dealings with the suit lands pending the petition

Holding

The application was unmerited and dismissed with costs

Reasoning

Applying the Gatirau Peter Munya thresholds, the petitioners, not being owners, were merely staking a claim that the land was community land; they had previously sought to purchase the lands, knew of the charges, admitted the 2nd respondent's proprietorship, and did not identify the over 1000 residents they claimed to represent. They failed to demonstrate a prima facie case.

p. 5
03

Effect of the subsisting court order permitting the 1st respondent to purchase LR No 8786 as chargee

Holding

The court declined to interfere with the disposal of that parcel

Reasoning

Hon Justice D S Majanja in Miscellaneous Cause No E 13222 of 2020 had granted the 1st respondent leave to purchase LR No 8786 as chargee. The court held it would not interfere with a valid court order. LR No 8784/4 was also found no longer to exist, having been subdivided.

p. 4

Legal principles established

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  • A preliminary objection raising mixed questions of law and fact, particularly where the answering party has not yet filed its pleadings, is premature and cannot succeed
  • A court will not interfere with a parcel of land whose disposal is the subject of a valid court order
  • A party claiming community land or adverse possession over registered land must file a proper civil suit and adduce viva voce evidence rather than a constitutional petition

Court orders

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  1. 1.The notice of preliminary objection dated September 20, 2021 is disallowed as premature
  2. 2.The notice of motion application dated August 12, 2021 is dismissed with costs
Jurisdiction invoked
Original constitutional petition jurisdiction of the Environment and Land Court (not expressly cited in the extract)

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, "Mutiso & 2 others v Kenya Commercial Bank Limited & 3 others (Environment & Land Petition 15 of 2021) [2023] KEELC 940 (KLR)", Case Analysis (2023). Not stated in judgment (Petition, Machakos ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/940/eng@2023-02-21

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