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
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the preliminary objection was competent
Dismissed; grounds were factual and required evidence, and the objection did not meet the Mukisa Biscuit threshold
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.
Whether the plaintiffs, strangers to ELC 614 of 1998, could be evicted under its decree
No; the decree could only be executed against the defendants named in it, and evicting non-parties unheard offends natural justice
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.
Whether the plaintiffs established a prima facie case and irreparable harm for temporary injunction
Yes; uncontroverted affidavit evidence of occupation and structures made a prima facie case, and eviction would cause irreparable loss not compensable in damages
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.
Legal principles established
#- 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
#- 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.Notice of Preliminary Objection dated October 3, 2022 dismissed
- 3.Costs of the preliminary objection and the application to abide the winner of the suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.