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ELCDismissedEnvironment and Land Appeal E029 of 2023· [2023] KEELC 17932 (KLR)

Kiugi (Suing as the legal representative of the Estate of David Kiugi Ncebere) v Kimathi (Suing as the legal representative of the Estate of M'Magiri Kamurani) & 3 others

Environment and Land Court
5 June 2023
1,033 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Meru refused to lift land injunctions, confirming that discharging them requires proof of concealment, changed circumstances, misconduct, or injustice.

What this practically means

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Executive summary

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This is a ruling by CK Nzili, J of the Environment and Land Court at Meru in an appeal (ELC Appeal E029 of 2023) arising from Meru CMC ELC No. 80 of 2019, a land dispute over LR Kiirua/Ruiri/1502 between the estates of David Kiugi Ncebere and M'Magiri Kamurani. The applicant (1st respondent in the appeal) moved the court by notice of motion dated 31.5.2023 seeking review of injunction orders of 10.5.2023 restraining the applicants from accessing the suit land, substitution with an order confining the appellant to 0.16 ha, arrest of the court's ruling due 19.7.2023, a site visit, a stay of trial court proceedings, and a temporary injunction restraining trespass on 0.65 ha he claimed to occupy. He alleged the appellant had hired goons who evicted him, destroyed crops and demolished his house, and that the order of 10.5.2023 sanctioned eviction without a hearing. The appellant opposed, asserting she held the entire 0.81 ha under a decree, that a stay of the lower court decree was in place, and that the application was an attempt to appeal the court's own orders. Applying Felista Chamaiyo Sosten v Samson Mutai, the court held that Order 40 rule 7 is sparingly used and requires proof of concealment, change of circumstances, conduct warranting discharge, or injustice; none was established. The application was dismissed with no interim orders, the court clarified that no eviction order existed against the applicant, and the lower court ruling was stayed until 19.7.2023. No costs order was made.

Key legal issues

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01

Whether the injunction orders of 10.5.2023 should be reviewed/discharged under Order 40 rule 7

Holding

The application failed; none of the grounds for discharge were proved

Reasoning

The court adopted the principles in Felista Chamaiyo Sosten v Samson Mutai that Order 40 rule 7 be sparingly used and requires proof of concealment, change of circumstances, conduct of the injunction holder, or injustice. Applying these, the applicant participated in the earlier application, proved no concealment, no change of circumstances and no injustice. Hence no interim orders were warranted.

p. 2
02

Whether an eviction order existed against the applicant

Holding

No eviction order had been issued against the applicant

Reasoning

The applicant complained that the order of 10.5.2023 sanctioned his eviction and that goons evicted him. The court clarified on the record that no eviction order existed against him, and noted that since the court had stayed execution of the lower court decree, both parties should await the application pending before the trial court.

p. 2
03

Whether the trial court's ruling due 19.7.2023 should be arrested or stayed

Holding

The ruling was not arrested; instead the lower court ruling was stayed until 19.7.2023

Reasoning

The court declined to arrest its own ruling listed for 19.7.2023, holding the application should be determined alongside it. However, because execution of the lower court decree had been stayed, good order required both parties to await the application dated 19.4.2023 before the trial court, so the lower court ruling was stayed until 19.7.2023.

p. 2

Legal principles established

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  • Order 40 rule 7 (discharge/review of injunction) ought to be sparingly used so as not to become a tool for appeal
  • To discharge an injunction the applicant must prove concealment of material facts, radical change of circumstances, conduct justifying discharge, or that sustenance of the injunction would cause injustice

Court orders

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  1. 1.Application dismissed; no interim orders issued at this stage
  2. 2.The application to be determined alongside the application due for ruling on 19.7.2023
  3. 3.Declaration that no order in the nature of eviction had been issued against the applicant
  4. 4.The lower court ruling shall stand stayed until the ruling on 19.7.2023

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rule 7

Cases cited (1)

  • Felista Chamaiyo Sosten v Samson Mutai
    (2013) eKLR

    Order 40 rule 7 should be sparingly used and not as a tool for appeal; grounds for discharging an injunction

On appeal from
Chief Magistrate's Court at Meru
Meru CMC ELC No. 80 of 2019
Jurisdiction invoked
Appellate and supervisory jurisdiction of the Environment and Land Court over subordinate courts in land matters (Environment and Land Court Act); not expressly cited in the ruling

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, "Kiugi (Suing as the legal representative of the Estate of David Kiugi Ncebere) v Kimathi (Suing as the legal representative of the Estate of M'Magiri Kamurani) & 3 others", Case Analysis (2023). Environment and Land Appeal E029 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17932/eng@2023-06-05

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