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Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the extract (Application dated 26th June 2023 in an Originating Summons dated 8th March 2021)· [2024] KEELC 746 (KLR)

Gwaka wa Utheri Mwitikiria Investments Utawala Limited (Formerly Mwitikiria Investments Company) v Wachu & 2 others; Kamau & 14 others (Applicant) (Environment & Land Case E010 of 2021) [2024] KEELC 746 (KLR)

Environment and Land Court
19 February 2024
2,738 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court let 68 land buyers join an ownership case but refused to stop construction, keeping existing status quo orders until full trial.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Machakos determined the Intended Interested Parties' Notice of Motion dated 26th June 2023 in a suit in which the Plaintiff seeks declaration of ownership of land parcel LR No. 7340/59 (now LR No. 28641) in Mavoko, Machakos County, by adverse possession. The Applicants, purchasers of portions of the suit land between 2009 and 2014 from Hannah Gathoni Gichuri (deceased), sought joinder as Interested Parties and an interlocutory injunction restraining the Plaintiff from construction or activities on the land, arguing their grant was later revoked and that the Plaintiff and its members were developing the land in disregard of status quo orders. The Plaintiff opposed, denying the Applicants' interest, possession or payment, and contending the injunction prayers had already been dealt with in a Ruling of 27th March 2023. The Defendants did not oppose. The court framed two issues: joinder and interlocutory injunction. Applying the Muruatetu parameters, Order 1 Rule 10(2), and the definitions of an interested party in Trusted Society of Human Rights Alliance and the Mutunga Rules, the court found the Applicants had a proximate stake and that joinder was necessary for complete adjudication, the Plaintiff having shown no prejudice. However, on the Giella v Cassman Brown and Mrao principles, the court found no prima facie case: the grant under which the Applicants bought was revoked in 2017, interests were competing, and an injunction would effectively evict the Plaintiff. The application was partially allowed: joinder granted, defences to be filed within 21 days, the 2021 status quo orders maintained, and costs in the cause.

Key legal issues

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01

Joinder of intended interested parties

Holding

The Applicants were joined as Interested Parties because they have a stake in the suit land and their presence is necessary for complete adjudication.

Reasoning

The court applied the Muruatetu parameters and Order 1 Rule 10(2). The Applicants claimed to have purchased portions of the suit land between 2009 and 2014, and both they and the Plaintiff claim possession. Their involvement was necessary to enable the court to effectually and completely adjudicate on all questions, and the Plaintiff failed to demonstrate prejudice from joinder.

p. 5
02

Entitlement to interlocutory injunction

Holding

Injunction refused for failure to establish a prima facie case.

Reasoning

Applying Giella v Cassman Brown and Mrao Ltd, the court found that although the Applicants bought portions from Hannah Gathoni Gichuri, the grant under which she sold was revoked in 2017 and the land directed to revert to the estate. With competing claims to possession and prior litigation, the proper course was a full hearing; an injunction would effectively evict the Plaintiff.

p. 6

Legal principles established

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  • An interested party is one with a recognisable stake in proceedings who will be affected by the decision of the court.
  • Joinder as an interested party is discretionary and requires a demonstrable, proximate personal interest, prejudice on non-joinder, and relevance of submissions.
  • A party seeking an interlocutory injunction must first establish a prima facie case with a probability of success.

Court orders

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  1. 1.Prayer No. 4 allowed: the Intended Interested Parties joined as Interested Parties in the suit
  2. 2.The Interested Parties to file and serve their Defences within twenty one (21) days from the date of the ruling
  3. 3.The orders of status quo issued on 21st September, 2021 maintained, with no party to dispose of or continue with further construction on the suit land pending the outcome of the suit
  4. 4.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rule 2

Cases cited (11)

  • Judicial Service Commission v Speaker of the National Assembly & Another
    (2013) eKLR
  • Florence Nafula Ayodi & 5 Others v Jonathan Ayodi Ligure
    (2021) eKLR
  • Mrao Limited v First American Bank of Kenya Limited & 2 Others
    (2003) eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    (2014) eKLR
  • Francis Karioki Muruatetu & Another v Republic & 5 Others
    (2016) eKLR
  • Francis Mwangi Mugo v David Kamau Gachago
    (2017) eKLR
  • Marigat Group Ranch & 3 others v Wesley Chepkoimet & 19 Others
    (2014) eKLR
  • Giella v Cassman Brown
    (1973) EA 358
  • Florence Nafula Ayodi & 5 others v Jonathan Ayodi Ligure v John Tabalya Mukite & another; Benson Girenge Kidiavai & 67 others
    [2021] eKLR
  • Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others
    (2015) eKLR
  • Francis Karioko Muruatetu & another v Republic & 5 others
    [2016] eKLR (Petition No. 15 of 2015)
Jurisdiction invoked
Order 1 Rule 10(2) of the Civil Procedure Rules ( joinder of parties)

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, "Gwaka wa Utheri Mwitikiria Investments Utawala Limited (Formerly Mwitikiria Investments Company) v Wachu & 2 others; Kamau & 14 others (Applicant) (Environment & Land Case E010 of 2021) [2024] KEELC 746 (KLR)", Case Analysis (2024). Not stated in the extract (Application dated 26th June 2023 in an Originating Summons dated 8th March 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/746/eng@2024-02-19

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