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ELCPartially Allowednot_stated_in_judgment· [2024] KEELC 1168 (KLR)

Machache v Nyale & 8 others (Environment and Land Case E058 of 2022) [2024] KEELC 1168 (KLR)

Environment and Land Court
5 March 2024
2,958 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kwale court refused to evict or restrain anyone in a 164-hectare land dispute, instead freezing the situation until ownership is properly determined at trial.

What this practically means

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Executive summary

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The Plaintiff, Joseph Chale Machache, moved the court by application dated 19/12/2022 seeking temporary and mandatory injunctions restraining the nine Defendants from entering, trespassing on, erecting structures on, subdividing or selling an unsurveyed parcel of approximately 164.0263 Hectares at Fuleye Village, Taru, Kwale County, and for demolition of structures pending hearing of the suit. The Plaintiff claimed ownership through a 1998 purchase agreement, supported by letters of 2014 and 2019. The Defendants, through the 1st Respondent, opposed, contending that over 100 people, including their parents resident since 1954, hold legitimate claims, and that the late Deputy Provincial Commissioner Mwakisha purchased the land in 1976 and permitted their parents to remain. The Defendants also filed a preliminary objection contending the suit is res judicata, having been dismissed on 8/5/2019 in Kwale MCELC No. 79 of 2015 for want of prosecution. The court first dismissed the preliminary objection, holding, following Tee Gee Electrics v Kenya Industrial Estates, that a suit dismissed for want of prosecution is not 'heard and determined' on the merits and therefore does not trigger Section 7 of the Civil Procedure Act. On the application, the court noted it could not at the interlocutory stage determine legitimate ownership, as a letter is not conclusive proof of ownership. It declined both the prohibitory injunction and the mandatory injunction for demolition and eviction, and instead issued status quo orders of its own motion: the property to remain as it is, no party to be evicted, each party to remain on the portions currently occupied, and neither party to erect further structures, subdivide or sell. Costs were awarded in the cause. The ruling was delivered by A.E. Dena, Judge, on 5 March 2024.

Key legal issues

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01

Whether dismissal of a prior suit for want of prosecution amounts to it having been 'heard and finally decided' for purposes of res judicata under Section 7 of the Civil Procedure Act

Holding

The preliminary objection fails; a suit dismissed for want of prosecution is not heard and determined on the merits, so a fresh suit is not barred by res judicata

Reasoning

The court applied the 'pure point of law' test for preliminary objections from Mukhisa Biscuits and IEBC v Cheperenger. It then examined the order of 8/5/2019 dismissing MCELC No. 79 of 2015 for want of prosecution under Order 17 Rule 2(3) of the Civil Procedure Rules. Relying on Tee Gee Electrics, it held that dismissal for want of prosecution is a technical, non-merits dismissal that does not trigger res judicata.

p. 5
02

Whether the Plaintiff was entitled to a prohibitory and/or mandatory injunction over the suit property

Holding

Neither injunction was granted; the court issued status quo orders instead, since ownership could not be determined at the interlocutory stage

Reasoning

The court applied the Giella-type principles for temporary injunctions and the higher special-circumstances threshold for mandatory injunctions from Nation Media Group v Mwau. As ownership of the suit property rested on contested documentary evidence (letters of 2014, 2019 and the 1976 correspondence), the court could not establish a prima facie case or justify demolition and eviction, and opted for status quo orders preserving the position of both parties.

p. 6

Legal principles established

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  • A suit dismissed for want of prosecution is not res judicata because res judicata only bars a subsequent suit where the former suit was heard and determined on the merits
  • An interlocutory mandatory injunction requires a higher standard and proof of special circumstances
  • The court may on its own motion issue status quo orders where the parties' rights are undetermined, without the strict requirements for injunctive relief

Court orders

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  1. 1.Status quo orders issued: the suit property, an unsurveyed parcel of land measuring approximately 164.0263 Hectares situate at Fuleye Village in Taru within Kwale County, to remain as it is pending the hearing and determination of the suit
  2. 2.The Defendants are not to be evicted from the said land until the suit is heard and determined
  3. 3.Each party to remain in use and occupation of the portions they currently occupy, but neither the Plaintiff nor the Defendants to further erect any structures, subdivide or sell the suit premises or any portions thereof
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 17 Rule 2(3)

Cases cited (8)

  • Mukhisa Biscuits Manufacturers Ltd v West End Distributors Ltd
    [1969] EA 696
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others
    Civil Application No. 36 of 2014 [2015] eKLR
  • Tee Gee Electrics and Plastics Company Ltd vs. Kenya Industrial Estates Limited
    [2005] KLR 97
  • Nation Media Group & 2 Others v John Harun Mwau
    [2014] eKLR
  • James Njoro Kibutiri v Kenya Shell
    Nairobi High Court, Civil Case No.3398 of 1980 (1981) eKLR
  • E.A Industries v Trufoods
    (1972) EA 420
  • Kenya Airline Pilots Association (KALPA) v Co-operative Bank of Kenya Limited & another
    [2020] eKLR
  • Thugi River Estate Limited & another v National Bank of Kenya Limited & 3 others
    [2015] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (suit concerning ownership, occupation and trespass over land in Kwale County); jurisdiction questioned in the preliminary objection under Section 7 of the Civil Procedure Act.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Machache v Nyale & 8 others (Environment and Land Case E058 of 2022) [2024] KEELC 1168 (KLR)", Case Analysis (2024). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1168/eng@2024-03-05

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