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ELCOtherEnvironment & Land Case 137 of 2018· [2023] KEELC 17840 (KLR)

Kibiba v Nguwa

Environment and Land Court
7 June 2023
EMEK Makori
808 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan land court declined to evict a long-term occupant, instead freezing the situation so both parties stay on their portions until the full case is heard.

What this practically means

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Executive summary

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This is a ruling by EK Makori J of the Environment and Land Court at Malindi on the plaintiff's application dated 28 June 2018 seeking an interlocutory injunction to restrain the defendant from trespassing on land parcel Kili/Kibarani/Block 9, which the plaintiff says she owns as registered proprietor. The defendant opposed, contending that he and his now-deceased brother Nzaro Ngua purchased the land from the plaintiff under a sale agreement dated 30 September 1995 for Kshs 33,000/-, took possession, and have lived there since, with his brother, wife and mother buried on the land; he claims to be a bona fide purchaser for value. The plaintiff allegedly began disputing the extent of the sale only in 2018, asserting she sold only one acre. The court framed a single issue: whether injunctive relief should issue at this stage. Applying the Giella v Cassman Brown test and relying on Thugi River Estate Ltd v National Bank of Kenya Ltd (citing Mugah v Kunga) and the ELC Practice Directions 2014, the court held that injunctive relief was not germane at this stage. Instead it ordered that the status quo obtaining on the suit property persists, with each party remaining in their respective portions until the suit is heard and determined, and awarded costs in the course. The ruling was delivered virtually at Malindi on 7 June 2023.

Key legal issues

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01

Whether an interlocutory injunction should issue restraining the defendant from the suit property

Holding

No injunction granted; the court instead ordered maintenance of status quo, each party remaining in their respective portions pending hearing and determination

Reasoning

Applying the Giella v Cassman Brown test, the applicant is the registered owner but the respondent claims ownership by purchase under a 1995 sale agreement and long occupation, with burials on the land. The court found the facts pointed to preservation of the position on the ground rather than injunctive relief, invoking the ELC Practice Directions 2014 and case-management discretion.

p. 2

Legal principles established

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  • In land matters, status quo orders should be issued to preserve the subject matter of the suit and protect what obtains on the ground pending hearing

Court orders

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  1. 1.That the status quo obtaining on land parcel Kili/Kibarani/Block 9 persists; each party is to remain in their respective portions till the matter is heard and determined
  2. 2.Costs in the course
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes; Environment and Land Court Practice Directions 2014 (Gazette Notice No 5178/2014)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kibiba v Nguwa", Case Analysis (2023). Environment & Land Case 137 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17840/eng@2023-06-07

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