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ELCAllowedEnvironment and Land Appeal E068 of 2022· [2023] KEELC 16955 (KLR)
Murithi v Muketha & another
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·~4 min to read original · ~4 min briefThe bottom line
#A Kenyan landowner who learned of a court judgment against her late won the right to freeze the land titles while she appeals.
What this practically means
#Executive summary
#This is a ruling by the Environment and Land Court at Meru (C.K. Nzili, J) on a notice of application dated January 16, 2023 in an appeal (ELC Appeal E068 of 2022). The applicant, Phylis Ngeta Murithi, sought inhibition orders against LR Nos. Timau/Timau/Block 7/1282, 1283, 1284 and 1285 - subdivisions of the original parcel Timau/Timau Block 7/621 (Nkando) - pending the hearing and determination of her appeal. She contended she was a joint owner of the original land, that the 1st and 2nd respondents obtained ex parte orders in the primary court on August 8, 2019 of which she learned only in January 2022 when strangers came to execute the decree, and that her application to set aside the judgment was dismissed on October 27, 2022, paving the way for subdivision and possible disposal. The respondents, through the 2nd respondent's affidavit, opposed the application, stating the decree directed subdivision into equal shares which was effected on November 30, 2021, that the parcels hold sentimental value as inheritance, and that they had no intention of disposing of them. The court held that an inhibition order is analogous to a prohibitory injunction, requiring the applicant to satisfy the Giella vs Cassman Brown ingredients. Finding that land rights, fair hearing and access to justice are constitutional cornerstones, and that the appeal was not frivolous, the court found a prima facie case established and, given the respondents' admission of no intention to dispose of the land, granted inhibition orders for one year, conditioned on the applicant depositing Kshs.50,000/= as security for costs within 14 days, failing which the orders would stand vacated. Parties were directed to fast-track the appeal.
Key legal issues
#01
Whether inhibition orders should issue pending appeal
Holding
Inhibition orders granted for one year, conditioned on deposit of security for costs
Reasoning
The court held an inhibition is like a prohibitory injunction, requiring the Giella ingredients. The applicant, condemned unheard in the lower court per her claim, established a prima facie case because land rights, fair hearing and access to justice are constitutional cornerstones, and the appeal was not frivolous. Since respondents admitted no intention to dispose of the land, no prejudice would arise from the orders.
p. 2
Legal principles established
#- An inhibition order is analogous to a prohibitory injunction and the applicant must satisfy the Giella vs Cassman Brown ingredients
- A prima facie case is established where there is evidence of a right which has been infringed calling the opposite party to explain
Court orders
#- 1.Inhibition orders granted against the titles to the suit parcels (LR Nos. Timau/Timau/Block 7/1282, 1283, 1284 & 1285) for a period of one year only
- 2.Lower court file to be availed and parties directed to fast-track the appeal
- 3.Applicant to deposit Kshs.50,000/= as security for costs within 14 days, in default the inhibition orders to stand vacated
- On appeal from
- Primary court (trial court)
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court; Section 68 of the Land Registration Act invoked for inhibition orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murithi v Muketha & another", Case Analysis (2023). Environment and Land Appeal E068 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16955/eng@2023-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.