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ELCOtherELC Case (Malindi) - Notice of motion dated 12th September 2023 in Plaintiffs' suit over Plot No. MN/III/284/R (CR. 7172) and MN/III/553 (Orig. 284/5) CR. 15344· [2024] KEELC 983 (KLR)

Mwaponda & another (Chairman and Vice Chairman suing in their own behalf and on behalf of Maweni “A” CBO) v Alamin & 3 others (Environment and Land Case E005 of 2023) [2024] KEELC 983 (KLR)

Environment and Land Court
27 February 2024
1,938 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Malindi court froze the current state of two disputed Kilifi plots and ordered the land registrar to report on them, instead of granting a full injunction.

What this practically means

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Executive summary

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The Plaintiffs, members of the Kilifi Maweni 'A' Squatter Upgrading Scheme, moved the court by notice of motion dated 12th September 2023 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules. They sought injunctions restraining the 1st Defendant, Abdulrahman M. Alamin, from trespassing on or dealing with the suit property and restraining the National Land Commission from conducting a survey in his favour, plus orders directing the District Land Registrar to report on the status of the plots and the County Commissioner to flush out invaders. The Plaintiffs relied on Local Physical Land Use Development Plan No. 139/KLF/2019/1 approved by the Kilifi County Government. The 1st Defendant, administrator of the estate of the registered owner of Plot No. 553/III/MN, opposed the motion, contending his plot was outside the development plan, that he had paid for a boundary survey, and that the suit was sub judice Mombasa ELC Case No. E033 of 2023 and Petition No. 10 of 2018. The 2nd Defendant did not oppose the motion; the 3rd and 4th Defendants confined themselves to the main suit. Framing two issues - sub judice and the merits - the court held it could not conclusively determine sub judice since the parties in the Mombasa suit were not identical. It nonetheless maintained the status quo over the disputed parcels, directed the District Land Registrar to report on the status of the plots within 15 days, made costs of the application costs in the cause, and set the matter for mention on 23rd May 2024 for directions.

Key legal issues

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01

Whether the suit is sub judice by reason of Mombasa ELC Case No. E033 of 2023 and Mombasa ELC Petition No. 10 of 2018

Holding

The court could not conclusively find sub judice; the defendants in the Mombasa suit (the County Government of Kilifi and the Officer, Kilifi Land Adjudication and Settlement Scheme) are not parties here and the nature of the issues and the alleged joinder application could not be ascertained

Reasoning

The court examined the exhibited orders issued by Naikuni J and noted the parties in the Mombasa suit differ from those here. It could not ascertain the issues in that suit or confirm the joinder application. However, the Plaintiffs did not entirely dispute the existence of the other suits, so the court opted for preservation of status quo in the interest of justice rather than a definitive sub judice ruling.

p. 4
02

Whether the interlocutory injunctive reliefs sought should be granted

Holding

The court declined to grant the injunctions as framed but maintained the status quo over the disputed parcels and ordered the 3rd Defendant to file a report on the status of the plots within 15 days

Reasoning

Rather than interrogating the Giella v Cassman Brown conditions in detail, the court balanced the existence of parallel suits and the parties' positions. It preserved the position of all parties on both disputed parcels, sought information from the District Land Registrar, and made the application costs costs in the cause, deferring substantive determination to the main suit.

p. 4

Legal principles established

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  • Section 6 of the Civil Procedure Act bars a court from trying a matter directly and substantially in issue in a previously instituted suit between the same parties or parties claiming under the same title
  • Where parallel suits over the same property exist and parties do not entirely dispute that fact, the court may in the interest of justice preserve the status quo pending further orders rather than grant the full injunction sought

Court orders

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  1. 1.The status quo of the parcels in dispute, Plot No. MN/III/284/R (CR. 7172) and MN/III/553 (Orig. 284/5) CR. 15344, be maintained by all parties pending further orders
  2. 2.The 3rd Defendant to furnish to the Plaintiffs and the court a report on the status of Plot No. MN/III/284/R (CR. 7172) and MN/III/553 (Orig. 284/5) CR. 15344 within 15 days
  3. 3.Costs of the application shall be in the cause
  4. 4.The matter to be mentioned on 23/5/2024 for directions

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 6
  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3

Cases cited (6)

  • Giella v Cassman Brown Co. Ltd
    [1973] EA 358
  • Christopher Chepkiyeng v Vincent Lelei & 3 others
    [2021] eKLR
  • Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others
    [2016] eKLR
  • Richard Kiplangat Sigei v Grace Sang
    [2020] eKLR
  • Mrao Limited v First American Bank of Kenya Limited
    [2003] eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tena
    [2018] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules (injunction jurisdiction of the ELC over the suit land)

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, "Mwaponda & another (Chairman and Vice Chairman suing in their own behalf and on behalf of Maweni “A” CBO) v Alamin & 3 others (Environment and Land Case E005 of 2023) [2024] KEELC 983 (KLR)", Case Analysis (2024). ELC Case (Malindi) - Notice of motion dated 12th September 2023 in Plaintiffs' suit over Plot No. MN/III/284/R (CR. 7172) and MN/III/553 (Orig. 284/5) CR. 15344. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/983/eng@2024-02-27

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