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ELCDismissedEnvironment & Land Case E010 of 2021· [2023] KEELC 16617 (KLR)

Gwaka wa Utheri Mwitikiria Investments Utawala Limited (Formerly Mwitikiria Investments Company) v Ng'ang'a & 2 others (Sued in their capacity as legal representatives of the Estate of Ndinguri Karugia (Deceased))

Environment and Land Court of Kenya
27 March 2023
3,960 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The Machakos Environment and Land Court allowed an adverse possession claim to proceed, rejecting arguments that the matter had already been decided and refusing to stop the occupants.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (Ochieng, J) determined the Defendants' Notice of Preliminary Objection and Notice of Motion dated January 2022 in a suit in which the Plaintiff, a membership company, seeks declaration of ownership of LR 7340/59 (now LR No. 28641, Mavoko) by adverse possession. The Defendants, legal representatives of the Estate of Ndinguri Karugia, argued the suit was res judicata following Justice Mbogholi Msagha's ruling of 7 March 2011 in Nairobi ELC 500 of 2010, and sought temporary injunctions restraining the Plaintiff from further construction, a declaration that the Plaintiff's officials were in contempt of the consent status quo order of 30 September 2021, and enforcement assistance. The court framed three issues: res judicata, temporary injunction, and contempt. On res judicata, it held the 2011 ruling only dismissed an injunction application; adverse possession was not directly and substantially in issue nor finally determined, so the preliminary objection was premature. On injunction, applying Giella and Mrao, the court found no prima facie case: the Plaintiff had a 1993 sale agreement with Herman Gachiri, payment acknowledgements, and structures on the land, and the 2010 ruling showed members were on the land by 2010, undermining the Defendants' claim of a 2021 invasion. On contempt, the consent order did not define the condition of structures and breach was not proved to the required standard. Both applications were disallowed; the status quo order stands with a bar on new structures or fences; costs were in the cause, with directions for expeditious hearing.

Key legal issues

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01

Whether the suit is res judicata given the ruling in Nairobi ELC 500 of 2010

Holding

The suit is not res judicata; the former suit only dealt with an injunction application and adverse possession was not directly and substantially in issue nor finally determined

Reasoning

The court examined the 7 March 2011 ruling of Justice Mbogholi Msagha and noted it only dismissed an application for injunction, with no indication the suit itself was determined. Applying Section 7 of the Civil Procedure Act and the Uh Highway Development test, the court found adverse possession was neither in issue between the same parties nor heard and finally determined, rendering the preliminary objection premature.

p. 5
02

Whether the Defendants are entitled to a temporary injunction against the Plaintiff

Holding

No; the Defendants failed to establish a prima facie case, and the status quo order of 30 September 2021 suffices with a bar on new structures

Reasoning

Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, the court found the Plaintiff signed a sale agreement in 1993 with acknowledgements of payment from the deceased, and structures existed on the land. The 2010 ruling showed Plaintiff's members were on the land by 2010, contradicting the Defendants' claim of a 2021 invasion, leading the court to find the Defendants were not candid.

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Whether the Plaintiff is in contempt of the consent order of 30 September 2021

Holding

Contempt not proved; the status quo order did not define the condition of structures and breach was not demonstrated to the required standard

Reasoning

The court set out the statutory basis of contempt (Section 63(c) Civil Procedure Act, Section 29 ELC Act, Section 4(1)(a) Contempt of Court Act) and the four elements from North Tetu Farmers. Since the Plaintiff and members were already on the land with structures when the order issued, and the order did not define the state of structures, the Defendants failed to prove deliberate breach.

p. 7

Legal principles established

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  • Res judicata requires that the matter directly and substantially in issue in the former suit between the same parties litigating under the same title was heard and finally decided by a competent court
  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained
  • Civil contempt requires proof to a standard higher than civil cases that the order was clear and unambiguous, binding, known to the defendant, breached, and that the breach was deliberate
  • Where a party fails to establish a prima facie case, the court need not determine the other two Giella limbs for injunction

Court orders

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  1. 1.The Notice of Preliminary Objection dated 19 January 2022 is disallowed
  2. 2.The Notice of Motion dated 24 January 2022 is disallowed
  3. 3.The status quo order issued on 30 September 2021 suffices, but parties are directed not to put up any new structures or fences on the suit property pending the outcome of the suit
  4. 4.Costs in the cause
  5. 5.Parties directed to set down the matter for hearing expeditiously and avoid interlocutory applications

Authorities

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Legislation

  • Civil Procedure ActSection 7 (including Explanations 1-6)
  • Civil Procedure ActSection 63(c)
  • Environment and Land Court ActSection 29
  • Contempt of Court ActSection 4(1)(a)
  • Civil Procedure RulesOrder 11

Cases cited (10)

  • Uhuru Highway Development Ltd v Central Bank & Others
    CA No. 36 of 1996

    Ingredients of res judicata

  • Nancy Mwangi t/a Worthlin Marketers v Airtel Networks (K) Ltd (Formerly Celtel Kenya Ltd) & 2 Others
    (2014) eKLR

    Res judicata

  • Mukhisa Biscuit Manufacturing Co. Ltd vs West End Distributors Company Limited
    (1969) EA 696

    Definition and principles of a preliminary objection

  • Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others
    Civil Application No. 36 of 2014

    Reiteration of preliminary objection principles

  • Giella v Cassman Brown & Co Ltd
    (1973) E.A. 356

    Principles for granting interlocutory injunction

  • Mrao Ltd v First American Bank Ltd & 2 Others
    (2003) KLR 125

    Definition of a prima facie case

  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    CA No. 77 of 2012

    Where no prima facie case, court need not consider other injunction limbs

  • North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi
    (2016) eKLR

    Four elements of civil contempt

  • Ochino & another v Okombo & 4 others
    (1989) eKLR

    Personal service of order required before contempt enforcement

  • Paul Maina Ngugi & 31 Others Vs Hannah Gathoni Gichiri, Njoroge Herman, Gideon Ndinguri Herman & Boro Herman
    Nairobi ELC Suit No. 500 of 2010, Ruling of 7 March 2011

    Former suit relied on for res judicata; dismissed injunction application

Jurisdiction invoked
Article 162(2)(b) of the Constitution establishing the Environment and Land Court (implied by the court's jurisdiction over the land dispute); no express provision cited

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, "Gwaka wa Utheri Mwitikiria Investments Utawala Limited (Formerly Mwitikiria Investments Company) v Ng'ang'a & 2 others (Sued in their capacity as legal representatives of the Estate of Ndinguri Karugia (Deceased))", Case Analysis (2023). Environment & Land Case E010 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16617/eng@2023-03-27

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