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ELCAllowedNotice of Motion dated 16th September 2022 (in suit referencing ELC No. 140 of 2019, Machakos)· [2024] KEELC 1359 (KLR)

Joseph Theuri & Others v Jackson Kasamu Kavisi & 2 Others

Environment and Land Court
13 March 2024
2,141 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Machakos blocked occupants from interfering with titled land, holding that registered owners win unless fraud is proved.

What this practically means

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Executive summary

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The plaintiffs/applicants, who deponed that they purchased the suit parcels (L.R Nos 26681/130, 26681/50, 26681/48, 26681/29, 26681/5, 26681/6 and 26681/59 in Machakos County) from Deliverance Church Registered Trustees in 1994, moved the court by Notice of Motion dated 16th September 2022 seeking an interlocutory injunction restraining the 1st to 3rd respondents from selling, disposing of, transferring, beaconing, fencing, occupying or otherwise interfering with the suit properties pending trial. The respondents opposed through a replying affidavit by the 1st respondent, who claimed residence on L.R Block 12610/1 Mavoko with about 2000 others, pointed to pending related litigation (ELC 108 of 2019 and ELC 140 of 2019) and alleged existing status quo orders, and also raised a preliminary objection that the suit was sub judice. The court framed two issues: sub judice and the injunction threshold. On sub judice, it held that ELC 108 of 2019 concerned a different parcel claimed under adverse possession with no demonstrated nexus to the suit properties and no common parties, so section 6 of the Civil Procedure Act was not satisfied. On the injunction, applying the Giella principles and the Mrao definition of a prima facie case, the court found the applicants, as registered proprietors with no allegation of fraud or irregular acquisition against them under section 26 of the Land Registration Act, had established a prima facie case; the OB report at Athi River Police Station evidenced a real risk of irreparable harm; and the balance of convenience favoured the registered owners. The respondents' claim of occupation was unsupported and, in any event, occupation without legal basis attracts no protection. The court allowed the application, issued the temporary injunction as sought, and ordered the 1st to 3rd respondents to bear the costs of the application.

Key legal issues

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01

Whether the suit is sub judice under section 6 of the Civil Procedure Act

Holding

The suit is not sub judice; the respondents failed to demonstrate the elements of section 6.

Reasoning

The previously filed suit ELC 108 of 2019 concerned parcel 12610/1 claimed under adverse possession, whereas this suit concerns different parcels (L.R Nos 26681 series). The respondents provided no evidence of the nexus between parcel 12610/1 and the suit properties, none of the plaintiffs here is a party in ELC 108 of 2019, and the respondents had not filed a defence showing a like adverse possession claim. Thus neither the same issue nor the same parties requirement was met.

p. 3
02

Whether the applicants established a prima facie case

Holding

Yes. As registered proprietors with titles and searches exhibited, and no allegation of fraud or illegal acquisition, they demonstrated a prima facie case.

Reasoning

The applicants exhibited title and search documents proving registration. The respondents did not allege the registration was obtained by fraud, misrepresentation, unprocedurally or through a corrupt scheme, and attached no evidence of their alleged occupation of the suit property. Under section 26 of the Land Registration Act the certificate of title is prima facie evidence of absolute and indefeasible ownership, so the respondents' bare assertion of residence could not rebut the applicants' rights.

p. 4
03

Whether irreparable loss and balance of convenience favour the injunction

Holding

Yes. There was evidence of reported threats and potential violent confrontation, and as registered owners the balance of convenience tilts in the applicants' favour.

Reasoning

The applicants deposed that without the orders there would be anarchy, violent confrontation, breach of peace, loss of property and loss of life, corroborated by an OB report from Athi River Police Station. The court accepted this as demonstrating irreparable harm not compensable in damages, and because the applicants are registered owners of the suit property, the balance of convenience favoured granting the injunction.

p. 5

Legal principles established

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  • Where a pending previously filed suit exists, a subsequent suit over the same issue between the same parties or their privies ought to be stayed
  • Registration confers indefeasible title unless procured by fraud, misrepresentation, unprocedurally or through a corrupt scheme
  • Occupation of land without legal basis attracts no legal protection

Court orders

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  1. 1.A temporary injunction issued restraining the 1st, 2nd and 3rd Defendants/Respondents, their agents, servants, employees, assigns or whosoever from offering for sale, selling, disposing, transferring, beaconing, erecting a perimeter wall, occupying or in any other manner interfering with the suit properties known as L.R Nos 26681/130, 26681/50, 26681/48, 26681/29, 26681/5, 26681/6 and 26681/59 Machakos county pending the hearing of the suit
  2. 2.The 1st to 3rd respondents to bear the costs of the application

Authorities

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Legislation

  • Civil Procedure Actsection 6
  • Civil Procedure RulesOrder 40 Rule 1
  • Land Registration Actsection 26

Cases cited (2)

  • Giella v. Cassman Brown
    [1973] EA 358
  • Mrao v. First American Bank of Kenya Limited & 2 Others
    [2003] eKLR
Jurisdiction invoked
Civil Procedure Act, section 6 and Order 40 Rule 1 of the Civil Procedure Rules (ELC original jurisdiction over land disputes)

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, "Joseph Theuri & Others v Jackson Kasamu Kavisi & 2 Others", Case Analysis (2024). Notice of Motion dated 16th September 2022 (in suit referencing ELC No. 140 of 2019, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1359/eng@2024-03-13

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