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ELCPartially AllowedEnvironment & Land Case E018 of 2023· [2023] KEELC 18728 (KLR)

Musti Investment Ltd & another v Kilonzo & 12 others

Environment and Land Court of Kenya
5 July 2023
ANA. Nyukuri
5,584 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan land court upheld registered owners' title, granted them an injunction with police backing, and dismissed the squatters' competing applications entirely.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (A. Nyukuri, J) determined three interlocutory applications in a land dispute over parcels arising from LR. No. 12498/4 (Original No. 12498/2/2). The Plaintiffs, claiming to be registered proprietors by purchase, sought injunctions restraining the Defendants from erecting structures and interfering with the suit properties, alleging that the Defendants, including two Members of the County Assembly, demolished a perimeter wall and threatened their workers. The 6th to 13th Defendants, claiming 15 years' adverse possession and alleging fraudulent subdivision, sought status quo orders, setting aside of the ex parte orders of 13th March 2023, striking out of the suit as sub judice given the pending Machakos ELC (OS) 16 of 2021, temporary injunction, contempt orders against Christopher Mutuku and Joseph Musau, and placement of Langley Security Group on the property. The court held the suit was not sub judice because the parties and issues in the earlier adverse possession suit differed, and the 2nd Plaintiff was joined to it without his consent. The Defendants' injunction prayers failed for want of a counterclaim; the status quo prayer was misconceived as framed; contempt was not proved since the extended orders were injunctions against the Defendants, not status quo orders against the Plaintiffs; and the Langley Security prayer offended the right to be heard. The Plaintiffs, holding title under Section 26 of the Land Registration Act with no fraud demonstrated against them, established a prima facie case, irreparable injury and balance of convenience. Their application was allowed with injunctions and police assistance; the Defendants' applications were dismissed with costs to the Plaintiffs.

Key legal issues

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01

Whether the suit is sub judice

Holding

The suit is not sub judice; the parties and issues in Machakos ELC (OS) 16 of 2021 differ from those in this case

Reasoning

Section 6 of the Civil Procedure Act requires the same matter, same parties or privies, and a court with jurisdiction. The 2nd Plaintiff was joined to the earlier suit without his knowledge, consent or instructions - no authority was attached for the deponent to swear on his behalf. The earlier suit claims adverse possession against Mathatani Limited, while this suit claims ownership and trespass by the registered proprietor, who is not party to the earlier suit.

p. 7
02

Whether the 6th to 13th Defendants were entitled to temporary injunction

Holding

Dismissed - without a counterclaim they could not demonstrate a prima facie case

Reasoning

Applying the Nguruman sequential test and the Mrao definition of a prima facie case, the court held that an applicant seeking a temporary injunction must have filed a suit against the party to be restrained. Only the Plaintiffs filed suit; the Defendants filed no counterclaim, so their injunction prayers had no foundation and were dismissed.

p. 8
03

Whether the Plaintiffs were entitled to temporary injunction

Holding

Allowed - the Plaintiffs demonstrated a prima facie case, irreparable injury and balance of convenience

Reasoning

The 1st Plaintiff produced certificates of title showing registration as proprietor, while the Defendants, claiming adverse possession, failed to demonstrate a legal right or interest or any fraud; no copy of the register supported their claim against Mathatani Limited. Both parties had physical confrontations involving police, and the allegation that the County Government demolished the fence was not demonstrated. Title plus possession tilted the balance of convenience in the Plaintiffs' favour.

p. 10
04

Whether contempt of the orders of 27th April 2023 was proved

Holding

Not proved - the extended orders were injunctions against the Defendants, not status quo orders against the Plaintiffs

Reasoning

The court examined the orders of 28th March 2023 extended on 27th April 2023 and found they granted temporary injunction restraining the Defendants from interfering with the suit property, with no order against the Plaintiffs and no status quo order. The alleged disobedience therefore had no legal foundation and the contempt prayer was dismissed.

p. 9

Legal principles established

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  • To establish sub judice, the applicant must show the same issue between the same parties or their privies pending before a court with competent jurisdiction to grant the relief claimed
  • A prima facie case for temporary injunction can only be deduced from a claim filed by the plaintiff or a counterclaim filed by the defendant
  • A court may grant either maintenance of status quo or a restraining injunction, but not both at the same time in the same matter
  • A registered proprietor's title is conclusive under Section 26 of the Land Registration Act except where fraud or misrepresentation to which the person is party, or illegal, unprocedural or corrupt acquisition, is proved

Court orders

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  1. 1.Restraining the Defendants, their agents, assigns or proxy from entering, trespassing, encroaching, further demolishing, accessing, threatening the Applicants' workers or in any other manner dealing with all lands under Title Nos. 12498/71, 12498/72, 12498/15, 12498/19, 12498/12, 12498/14, 12498/26, 12498/27 and 12498/30 pending hearing and determination of the application and suit
  2. 2.Restraining the Defendants, their agents, servants or any other person acting on their instructions from erecting structures whether temporary or permanent on the suit properties during the pendency of the suit
  3. 3.Directing the DCI Kyumbi and OCS Kyumbi Police Station and/or officers under their directions to give assistance to the Applicants in enforcing the order
  4. 4.Dismissal of the 6th to 13th Defendants' Notices of Motion dated 27th March 2023 and 12th May 2023 with costs
  5. 5.Costs of the three applications awarded to the Plaintiffs

Authorities

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Legislation

  • Civil Procedure Act (referred to as 'Civil Procedure Rules')Section 6
  • Civil Procedure RulesOrder 40 Rule 1
  • Land Registration ActSection 26
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 50

Cases cited (2)

  • Nguruman Limited v. Jan Bonde Nielsen & 2 Others
    CA No. 77 of 2012 [2014] eKLR

    The sequential triple requirements for a temporary injunction: prima facie case, irreparable injury, balance of convenience

  • Mrao Ltd v. First American Bank of Kenya Ltd
    [2003] eKLR

    Definition of a prima facie case in civil applications

Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 (Environment and Land Court) - implied by the court's jurisdiction over land disputes; no express provision cited

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Musti Investment Ltd & another v Kilonzo & 12 others", Case Analysis (2023). Environment & Land Case E018 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18728/eng@2023-07-05

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