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ELCOtherNot stated in the judgment as extracted· [2024] KEELC 4301 (KLR)

Muli & 8 others v Matungulu Farmers Company Ltd & another (Environment & Land Case E039 of 2023) [2024] KEELC 4301 (KLR)

Environment and Land Court
28 May 2024
COChristine Ochieng
1,892 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Machakos land court refused a broad injunction but froze the situation, barring both sides from touching disputed Machakos land until trial.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) on the Plaintiffs' Notice of Motion dated 9 October 2023 seeking an interlocutory injunction to restrain the Defendant company, its agents and employees from entering, re-surveying, trespassing on, cutting trees, removing fences or otherwise interfering with LR No. 11931/17 in Machakos County. The 1st Plaintiff claims to be a bona fide member of the 1st Defendant, registered as owner of the suit land in 1992, and to have sold portions to the 2nd to 9th Plaintiffs. She alleges the Respondents entered the land in September 2023 and began clearing vegetation and placing beacons, claiming to re-survey. The Defendant, through Leonard Munyao Kiiti's replying affidavit, contended that the 1982 survey by one Mr. Gitau was flawed, unregistrable and superseded by a resurvey sanctioned by members' meetings in 1986 and 1991, under which the 1st Plaintiff's family held one and a half shares (210 acres) benefiting in identified Ndithini/Mananja Block 6 parcels; it denied that LR 11931/17 exists in Government records. Applying Giella v Cassman Brown and Mrao, the court found the Plaintiffs, though not registered proprietors and lacking Certificates of Title, had established a prima facie case given their occupation and the 1982 allocation. However, because the survey dispute could not be resolved at the interlocutory stage, the court declined to grant the orders as sought and instead directed that the status quo be maintained, with no party interfering with the substratum of the suit land or any person's occupancy, pending trial. Costs were awarded in the cause.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case with a probability of success

Holding

The Plaintiffs established a prima facie case based on the 1st Plaintiff's 1982 allocation and sale of portions to the other Plaintiffs, despite lacking certificates of title and registration as proprietors

Reasoning

The court noted conflicting explanations on acreage and location and the absence of Certificates of Title or occupation photographs from the Plaintiffs. Nonetheless, it was not disputed that the Plaintiffs occupy the land, that the 1st Plaintiff sold portions to the 2nd to 9th Plaintiffs, and that the 1st Plaintiff was allocated the land in 1982. On that basis a prima facie case was found, applying Giella v Cassman Brown and Mrao.

02

Whether the temporary injunction should issue as sought

Holding

The injunction as sought was refused; instead the status quo was ordered maintained because the survey dispute could not be resolved at the interlocutory stage

Reasoning

The court held that the rival survey claims (the Gitau survey of 1982 versus the later resurvey) raise factual disputes only resolvable at trial. Since the Plaintiffs were in occupation and a prima facie case existed, protecting the substratum of the suit through a status quo order was the appropriate, proportionate interim measure.

p. 4

Legal principles established

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    Court orders

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    1. 1.The application is merited but the injunction orders as sought are not granted
    2. 2.Status quo to be maintained: no party to interfere with the substratum of the suit land nor any person's occupancy of a portion of the suit land pending hearing and determination of the suit
    3. 3.Costs in the cause

    Authorities

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    Cases cited (5)

    • Olympic Sport House Ltd v School Equipment Centre Ltd
      (2012) eKLR
    • Giella Vs Cassman Brown
      (1973) EALR 358
    • Jan Bolden Nielsen v Herman Philipus Steyn & 2 others
      (2012) eKLR
    • Joseph Mugo Njuguna v Veronica Wangui Njuguna
      HCCC No. 142 of 2011
    • Mrao Ltd V First American Bank of Kenya Ltd
      (2003) eKLR
    Jurisdiction invoked
    Original civil jurisdiction of the Environment and Land Court over land in Machakos County (interlocutory application in a pending suit)

    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, "Muli & 8 others v Matungulu Farmers Company Ltd & another (Environment & Land Case E039 of 2023) [2024] KEELC 4301 (KLR)", Case Analysis (2024). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4301/eng@2024-05-28

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