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ELCDismissedEnvironment & Land Case E084 of 2022· [2023] KEELC 19066 (KLR)

Kimondiu & 3 others v Makenzi & another

Environment and Land Court
24 July 2023
COChristine Ochieng
1,937 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Machakos Environment and Land Court refused to stop a registered landowner from dealing with his land because the claimants could not prove a strong case.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Machakos (CA Ochieng, J) on the Plaintiffs' Notice of Motion dated November 17, 2022 seeking a temporary injunction restraining the 1st Defendant from evicting, alienating, subdividing or interfering with land parcel Muviti/Kaani/780 pending the hearing of the main suit. The Plaintiffs, claiming to be dependants of the late Ikuvi Mulela, alleged that the 1st Defendant fraudulently caused himself to be registered as proprietor of the suit land while holding it in trust for the deceased's dependants, and that they had been in occupation, farming and constructing thereon. The 1st Defendant countered that he was a bona fide first registrant who compensated his uncles in 1980 during land adjudication, that no objections were raised during adjudication, and that the land had already been litigated in Machakos CMCC No 326 of 2006 and ELC Misc No 23 of 2018, culminating in eviction orders against Makau Nzuki which were never overturned. He argued the suit was a disguised appeal, that the Plaintiffs lacked capacity as non-administrators of the deceased, and that the suit was statute-barred and res judicata. Applying Giella v Cassman Brown and Mrao Ltd, the court found the Plaintiffs had not established a prima facie case: the 1st Defendant is the registered proprietor, the photographs showed no evidence of the Plaintiffs' occupation, prior judgments upheld his ownership, and no documentation proved the dependency claim. Relying on Nguruman, the court declined to consider the other injunction limbs and dismissed the application with costs in the cause.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case for interlocutory injunction

Holding

They did not; the 1st Defendant is the registered proprietor whose ownership has been upheld by courts of competent jurisdiction

Reasoning

The court perused the documents and found the 1st Defendant is the registered proprietor with no indication of any trust. The photographs showed only one house and vegetation, with no evidence of the Plaintiffs residing or cultivating. Prior judgments in CMCC No 326 of 2006 and ELC Misc No 23 of 2018 upheld the Defendant's ownership and were not overturned on appeal. The Plaintiffs offered no documentation proving they were dependants of Ikuvi Mulela, and their own Plaint admitted the Defendant intended to evict Makau Nzuki, the actual occupant.

p. 4

Legal principles established

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  • Where a party fails to prove a prima facie case, the court need not determine the other two Giella limbs for injunction

Court orders

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  1. 1.Notice of Motion dated November 17, 2022 dismissed
  2. 2.Costs in the cause
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (Environment and Land Court Act)

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, "Kimondiu & 3 others v Makenzi & another", Case Analysis (2023). Environment & Land Case E084 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19066/eng@2023-07-24

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