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ELCOtherEnvironment & Land Case E013 of 2022· [2023] KEELC 20884 (KLR)

Mpusia & another v Sakisho & 6 others

Environment and Land Court
24 October 2023
CMCG MBOGO
2,173 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Narok declined to decide a contested land sale dispute and sent the whole case to the Magistrates' Court for a priority hearing.

What this practically means

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Executive summary

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The plaintiffs, Kutiti and Mumeita Ole Mpusia, moved the Environment and Land Court at Narok by Notice of Motion dated 8th May 2023 seeking, among other things, a temporary injunction, an order compelling the DCI Narok to file a report on complaints regarding the disappearance of the 1st defendant and alleged fraudulent dealings in land formerly registered as CisMara/Olkinyei/880, an order directing the Land Registrar Narok to avail the file and registry index maps, police security for compliance, joinder of Hosea Kerai Sakisho as 7th defendant, and leave to amend the plaint. The plaintiffs claimed they had purchased land under a 2015 sale agreement and that the 1st defendant disappeared in 2018, with a title deed later issuing to the proposed 7th defendant under a 2022 sale agreement the 1st defendant allegedly never signed. The proposed 7th defendant and the 2nd, 3rd and 4th defendants opposed, asserting a chain of lawful sales and subdivisions, the plaintiffs' default under the 2015 agreement, lack of locus, and lack of jurisdiction over habeas corpus-type constitutional claims. Both sides filed written submissions framing competing issues. Without determining any of the framed issues, the court held that the validity of the sale agreement and the value of the suit property made the Magistrates' Court the appropriate forum. It transferred the file to the Magistrates' Court for priority hearing, vacated the interim orders of 9th May 2023, and made no orders as to costs.

Key legal issues

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01

Proper forum for the dispute

Holding

The court declined to rule on the interlocutory application and transferred the suit to the Magistrates' Court

Reasoning

The court noted the dispute centred on property the plaintiffs claimed by purchase, and that the validity of the sale agreement of 21st June 2022 was contested, with the 1st defendant alleged not to have signed it. Given the contractual issues and the value of the suit property, the court considered the Magistrates' Court the appropriate forum and transferred the file with directions for priority hearing.

p. 5

Legal principles established

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  • Where a dispute involves a sale agreement whose validity is contested, the appropriate forum may be the Magistrates' Court rather than the Environment and Land Court

Court orders

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  1. 1.The file is transferred to the Magistrates' Court for hearing and determination on a priority basis
  2. 2.The orders issued on 9th May, 2023 are vacated
  3. 3.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3
  • Civil Procedure ActSections 1, 1A, 3, 3A and 63(e)
  • Law of Succession ActSections 45, 47, 71, 76, 86 and 94
  • Probate and Administration RulesRules 44(1) and 59(6)
  • Constitution of KenyaArticles 25, 47 and 50

Cases cited (8)

  • Mrao Limited v First American Bank of Kenya Limited & 2 others
    [2003] eKLR

    Threshold for grant of temporary injunction / prima facie case

  • Isaac Musyoki Komoni v Sammy Kaumbulu Mbuvi
    [2022] eKLR

    Injunction threshold

  • Wanyoike Mungai v Beatrice Karanja & another
    [2021] eKLR

    Joinder of a necessary party

  • Lewar Ventures Limited v Equity Bank (Kenya) Limited
    [2022] eKLR

    Leave to amend the plaint

  • Wilfred Ogero Mosigisi v Julius Ogero Mosigisi & another
    [2016] eKLR

    Opposition to injunction for lack of proof of ownership

  • Showing Industries Limited v Guardian Bank Limited & another
    [2002] eKLR

    Opposition to injunction

  • Vic Preston Murithi Ruchabi v Mary Wangari & 3 others
    [2018] eKLR

    Opposition to injunction

  • Catherine Chepkemoi Mukenyang v Evanson Pkemei Lomaduny & another
    [2022] eKLR

    Orders against a non-party / DCI investigation

Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - implied; application brought under Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules, Civil Procedure Act and Law of Succession 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, "Mpusia & another v Sakisho & 6 others", Case Analysis (2023). Environment & Land Case E013 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20884/eng@2023-10-24

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