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ELCAllowedNot stated in the judgment· [2024] KEELC 195 (KLR)

Muchiri v Orbit Chemical Industries Limited (Enviromental and Land Originating Summons E001 of 2023) [2024] KEELC 195 (KLR)

Environment and Land Court
25 January 2024
MMM.D. Mwangi
1,593 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Nairobi land court stopped a property owner from interfering with someone who has occupied and developed the land for over 21 years, pending full trial.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (M.D. Mwangi J) determined the Applicant's application dated 21st July 2023 seeking an interlocutory injunction restraining the Respondent from interfering with his possession and occupation of the suit property pending trial. The Applicant claimed to have enjoyed quiet, peaceful, open and uninterrupted possession for over 21 years and 6 months, and to have built a four-storeyed residential and commercial building on the property, grounding his claim in adverse possession. The Respondent responded only by a preliminary objection dated 18th September 2023 raising sub judice and res judicata. The court framed two issues: whether the preliminary objection was merited, and whether the injunction threshold was met. Applying the Mukhisa Biscuit definition and following In Re Kibet Arap Kimarun, Henry Wanyama Khaemba and Margaret Wachu Karuri, the court held that sub judice and res judicata require probing of facts and pleadings and cannot be determined by preliminary objection; the objection failed. On the injunction, applying Nguruman, the court held it could not conduct a mini-trial or make conclusive findings, and on uncontroverted affidavit evidence found the Applicant had demonstrated a prima facie case, likely irreparable loss, and that the balance of convenience favoured him. The court granted the interlocutory injunction restraining the Respondent from interfering with the Applicant's quiet possession pending hearing and determination of the suit, with costs of the application in the cause.

Key legal issues

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01

Whether sub judice and res judicata can be raised by preliminary objection

Holding

They cannot; determining them requires probing the material facts of the other suits, taking the matter outside the narrow scope of a preliminary objection.

Reasoning

Relying on Mukhisa Biscuit and subsequent decisions, the court found that assessing sub judice or res judicata requires delving into the material facts of the other cases, calling for pleadings and examining whether the facts and issues are similar. Because this entails factual ascertainment, the objection is entangled with facts and is not a pure point of law suitable for a preliminary objection.

p. 2
02

Whether the Applicant met the threshold for an interlocutory injunction

Holding

Yes; the Applicant demonstrated a prima facie case, potential irreparable loss, and that the balance of convenience favours him, warranting an injunction preserving possession pending trial.

Reasoning

Applying the Nguruman principles, the court on uncontroverted affidavit evidence was satisfied the Applicant is in occupation of the suit property. Whether that occupation justifies adverse possession is reserved for trial. Considered wholesomely, the Applicant showed a prima facie case, likely irreparable loss, and the balance of convenience tilts in his favour, justifying the interlocutory injunction.

p. 4

Legal principles established

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  • A preliminary objection cannot be sustained where determination of the issue requires ascertaining facts or probing evidence, as with sub judice and res judicata.
  • In an interlocutory application the court makes no conclusive findings of fact or law and does not hold a mini trial.

Court orders

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  1. 1.The Respondent's preliminary objection on sub judice and res judicata is not merited and fails
  2. 2.The Applicant is granted orders of interlocutory injunction restraining the Defendant by itself, servants, agents and/or employees from interfering with the Applicant's quiet possession and occupation of the suit property pending hearing and determination of the case
  3. 3.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 6

Cases cited (9)

  • Hassan Ali Joho & Another -Vs- Suleiman Said Shabal & 2 others
    SCK Petition No. 12013 [2014] eKLR
  • Mukhisa Biscuit Manufacturers Ltd vs West End Distributors Ltd
    (1969) E.A
  • Equity Bank Limited vs. Bryan Yongo & Another
    [2014] eKLR
  • In Re Kibet Arap Kimarun (Deceased)
    (2021) eKLR
  • Henry Wanyama Khaemba –vs- Standard Chartered Bank Ltd & Another
    (2014) eKLR
  • Margaret Wachu Karuri –vs- John Waweru Ribiro
    (2021) eKLR
  • Airland Tours and Travel Ltd Vs National Industrial Credit Bank
    Nairobi (Milimani) HCCC 1234 of 2002
  • Gilbert –vs- Eden
    (1878) 9 ch. D
  • Nguruman Ltd Vs Jan Bonde Nielsen & 2 Others
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction over land disputes; application under the Civil Procedure Act regime and interlocutory injunction jurisdiction (specific enabling provision not stated 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, "Muchiri v Orbit Chemical Industries Limited (Enviromental and Land Originating Summons E001 of 2023) [2024] KEELC 195 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/195/eng@2024-01-25

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