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ELCPartially AllowedEnvironment & Land Case 11 of 2022· [2023] KEELC 21245 (KLR)

Muthoka Makau & 25 others v Ahmed Siraj Noor; Aisha Faraj Mohamed & OCS Bamburi Police Station (Intended Interested Parties)

Environment and Land Court of Kenya
30 October 2023
LNL.L Naikuni
29,732 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~119 min to read original · ~4 min brief

The bottom line

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A Mombasa court protected 26 land claimants with an injunction but refused to jail anyone for contempt because personal service of the order was never proved.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Mombasa (Naikuni J) determined five interlocutory applications in a suit in which 26 plaintiffs claim title to land parcel MN/I/18815 (sub-divided into numerous plots at Utange, Mombasa) by adverse possession under Sections 7, 13 and 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules. The court consolidated its treatment of the plaintiffs' applications dated 16th February 2022 (temporary injunction), 19th December 2022 and 2nd March 2023 (contempt and committal), and 16th January 2023 (striking out the defendant's pleadings), together with the defendant's application dated 13th December 2022 seeking stay and setting aside of the status quo order issued on 16th/18th February 2022. A site visit conducted by the Deputy Registrar on 21st July 2023 produced a report recording that claimants could not identify each other's plots, some lived outside the disputed parcel, and the government surveyor found no evidence of prior settlement. The court allowed the injunction application, restraining the defendant from surveying, subdividing, evicting or alienating the suit land pending trial, holding the Giella threshold met on the balance of convenience. It dismissed the defendant's application to set aside the status quo order, holding a temporary injunction merely preserves the status quo. The contempt applications failed for want of proof of willful disobedience and personal service to the criminal-like standard required. The application to expunge the defendant's pleadings failed because the date discrepancy was a registry stamping error and triable issues existed. Aisha Faraj Mohamed was joined as 2nd Defendant; the OCS Bamburi was not enjoined. Costs were left in the cause, and the suit was directed to viva voce hearing on 25th January 2024 at Voi ELC after conversion of the Originating Summons to a Plaint.

Key legal issues

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01

Joinder of parties for contempt purposes

Holding

Aisha Faraj Mohamed joined as 2nd Defendant as the party with a stake in the suit property; OCS Bamburi declined

Reasoning

Applying Order 1 Rule 10 and the Muruatetu principles, the court found the 2nd Intended Defendant had a proximate interest in the suit property. The applicants failed to demonstrate the benefit or necessity of enjoining the OCS Bamburi Police Station, so that prayer was refused. The court also stressed that joinder requires pending, alive proceedings.

p. 45
02

Temporary injunction threshold

Holding

Applicants met the Giella criteria; injunction granted pending hearing of the suit

Reasoning

Despite the defendant's surveyor's report and the site visit report suggesting the applicants were not in occupation, the court found uncertainty over dealings in the land demonstrated irreparable loss, and that the balance of convenience favoured preserving the suit land until trial, since the court had not interrogated all documents and annexures.

p. 48
03

Contempt of court and committal

Holding

Contempt applications dismissed; willful disobedience not proved

Reasoning

The court held contempt is quasi-criminal, requiring proof beyond reasonable doubt of clear order terms, knowledge or personal service, breach and deliberateness. There was no evidence of personal service of the 16th/18th February 2022 order on the respondents, and the alleged disobedience related to third parties' activities.

04

Striking out of the defendant's pleadings

Holding

Application to expunge dismissed; documents raise triable issues

Reasoning

Relying on Postal Corporation v Inamdar and Co-operative Merchant Bank v Wekesa, the court held striking out is draconian and impermissible where bona fide triable issues exist. The date discrepancy was a registry stamping error evidenced by the filing receipt, to be resolved at pre-trial conference.

p. 53
05

Setting aside the status quo order

Holding

Defendant's application to stay and set aside Order 2 dismissed

Reasoning

Under Order 40 Rule 7 the court has discretion to discharge injunctions, but the court found the injunction merely preserves the status quo pending trial and no defendant is prejudiced. Instead, the court directed expeditious hearing of the suit in light of the Deputy Registrar's site visit report.

p. 54

Legal principles established

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  • The applicant for an interlocutory injunction must sequentially establish a prima facie case, irreparable injury and balance of convenience
  • Contempt must be proved to a standard higher than balance of probabilities, requiring proof of clear terms, knowledge or service, breach and deliberateness
  • A temporary injunction merely preserves the status quo pending trial and does not prejudice a defendant
  • An error in the court registry's date stamp cannot be visited upon an innocent litigant

Court orders

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  1. 1.The Notice of Motion dated 16th February, 2022 by the Plaintiffs/Applicants allowed entirely
  2. 2.Temporary injunctive orders issued restraining the Defendant, his servants, agents and any person claiming under him from surveying, subdividing, evicting, alienating or dispossessing the plaintiffs from Title number MN/1/18815 and the listed sub-divisions pending hearing and determination of the suit
  3. 3.The Notice of Motion dated 13th December, 2022 by the Defendant dismissed entirely
  4. 4.The Notice of Motion dated 19th December, 2022 by the Plaintiffs/Applicants dismissed entirely
  5. 5.The Notice of Motion dated 16th January, 2023 by the Plaintiffs/Applicants dismissed entirely
  6. 6.The Notice of Motion dated 2nd March, 2023 allowed only to the extent of joinder of Aisha Faraj Mohamed as 2nd Defendant; the rest dismissed
  7. 7.Aisha Faraj Mohamed joined as a party to the suit
  8. 8.Plaintiffs granted 21 days leave to file and serve an Amended Plaint; Defendants granted 14 days thereafter to file and serve Amended Defence and Counter Claim and further documents
  9. 9.Directions for disposal of the Originating Summons under Order 37 Rules 13 and 16, converting it to a Plaint, with viva voce evidence on 25th January, 2024 at Voi ELC and Pre-Trial Conference under Order 11
  10. 10.Costs of the two applications to be in the cause
Jurisdiction invoked
Articles 40, 64 and 159(2)(d) of the Constitution; Sections 7, 17 and 38 of the Limitation of Actions Act (Cap 22); Order 37 Rule 7 and Order 40 of the Civil Procedure Rules, 2010; Section 5 of the Judicature 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, "Muthoka Makau & 25 others v Ahmed Siraj Noor; Aisha Faraj Mohamed & OCS Bamburi Police Station (Intended Interested Parties)", Case Analysis (2023). Environment & Land Case 11 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21245/eng@2023-10-30

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