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ELCPartially AllowedEnvironment & Land Case E194 of 2022· [2023] KEELC 16488 (KLR)

Kikwau & 29 others (Suing on their behalf and on behalf of all persons with structures and developments on LR No 209/11388) v Mathare United Traders & Farmers Limited

Environment and Land Court
23 March 2023
2,682 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court blocked the eviction of 30 Nairobi occupants, ruling a land decree cannot be enforced against people who were never parties to the case.

What this practically means

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Executive summary

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Thirty plaintiffs claiming to have occupied LR No 209/11388 since 1978 and to have acquired prescriptive rights by adverse possession under sections 37 and 38 of the Limitation of Actions Act moved the court by Notice of Motion dated May 31, 2022 seeking a temporary injunction restraining the defendant from evicting them, demolishing their structures or dealing with the suit land pending hearing of the main suit. The defendant filed an eight-ground preliminary objection contending the plaintiffs were strangers to ELC 614 of 1998, whose decree and eviction warrants it was executing; that they had proved no exclusive possession; that the suit was res judicata given dismissed objection proceedings filed word-for-word identical; and that the suit was frivolous, an abuse of process and should be struck out with costs on a higher scale. The plaintiffs argued the objection raised factual matters requiring affidavit evidence and did not meet the Mukisa Biscuit threshold. The court found the objection proceedings were not availed to it and made no finding on res judicata, but held the remaining grounds did not justify striking out the suit. On the injunction, the defendant filed no replying affidavit, so the plaintiffs' affidavit evidence of occupation, receipts and photographs stood uncontroverted, establishing a prima facie case. The defendant confirmed the plaintiffs were not parties to ELC 614 of 1998, and the court held that executing a decree against non-parties would offend natural justice, while granting the injunction did not stay the decree against the named judgment debtors. Loss of home and livelihood would be irreparable. The application was allowed in terms of prayer 3, the preliminary objection dismissed, with costs abiding the winner of the suit.

Key legal issues

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01

Whether the preliminary objection was competent

Holding

Dismissed; grounds were factual and required evidence, and the objection did not meet the Mukisa Biscuit threshold

Reasoning

The court held that grounds requiring proof of exclusive possession could only be established at a hearing, not at an interlocutory stage. The objection proceedings said to found res judicata were not availed to the court, so no finding could be made on them. The remaining grounds did not justify striking out the suit at a preliminary stage.

p. 5
02

Whether the plaintiffs, strangers to ELC 614 of 1998, could be evicted under its decree

Holding

No; the decree could only be executed against the defendants named in it, and evicting non-parties unheard offends natural justice

Reasoning

The defendant confirmed the plaintiffs were not parties to ELC 614 of 1998. The court held that granting the injunction does not stay the decree since the defendant remains free to evict the judgment debtors named in the decree. Executing a decree against persons not directed by it would condemn them unheard.

p. 5
03

Whether the plaintiffs established a prima facie case and irreparable harm for temporary injunction

Holding

Yes; uncontroverted affidavit evidence of occupation and structures made a prima facie case, and eviction would cause irreparable loss not compensable in damages

Reasoning

The defendant filed no replying affidavit; the affidavit of Lucy Nyambura Thuita, with receipts and photographs, stood uncontroverted, establishing a prima facie case. The plaintiffs live in the structures, so wrongful eviction would destroy home and livelihood, losses beyond monetary compensation, satisfying the Giella test for an injunction.

p. 5

Legal principles established

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  • A preliminary objection raising factual matters requiring affidavit evidence does not meet the Mukisa Biscuit threshold
  • Executing a decree against persons who were not parties to the suit offends natural justice
  • Loss of home and livelihood from wrongful eviction is not compensable by damages, supporting irreparable harm for injunction

Court orders

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  1. 1.Temporary injunction granted in terms of prayer 3 of the Notice of Motion dated May 31, 2022, restraining the defendant from evicting the plaintiffs, demolishing or fencing their buildings, interfering with their possession, or alienating the suit land pending hearing and determination of the main suit
  2. 2.Notice of Preliminary Objection dated October 3, 2022 dismissed
  3. 3.Costs of the preliminary objection and the application to abide the winner of the suit

Authorities

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Legislation

  • Limitation of Actions ActSections 37, 38
  • Civil Procedure ActSection 7, Explanation 6
  • Civil Procedure RulesOrder 22 rule 51

Cases cited (4)

  • Faustina Njeru v Kimunye Tea Factory Ltd
    Embu ELC 54 of 2021

    That averments in an application are deemed uncontroverted where no replying affidavit is filed

  • Kennedy Otieno Odiyo & 12 Others v Kenya Electricity Generating Company Limited
    [2010] KLR

    Grounds of opposition are general averments and do not respond to issues raised in supporting affidavits

  • Mukhisa Biscuit Manufacturers Co Ltd v West End Distributors Ltd
    [1969] EA 696

    Threshold definition of a preliminary objection

  • Agnes Nyang'anyi Omwamba v Samuel Bosire Nyaruna
    [2022] eKLR

    Meaning of irreparable harm - loss not compensable by damages

Jurisdiction invoked
Sections 37 and 38 of the Limitation of Actions Act (Cap 22) - adverse possession claim; Environment and Land Court original jurisdiction

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, "Kikwau & 29 others (Suing on their behalf and on behalf of all persons with structures and developments on LR No 209/11388) v Mathare United Traders & Farmers Limited", Case Analysis (2023). Environment & Land Case E194 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16488/eng@2023-03-23

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