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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 13th April 2023)· [2024] KEELC 4606 (KLR)

Mwanthi v Muoka & another (Both being sued on behalf of the Estate of Kavini Muoka Masku - Deceased) (Environment & Land Case E016 of 2022) [2024] KEELC 4606 (KLR)

Environment and Land Court
5 June 2024
TMT. Murigi
1,557 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered an official boundary survey between two neighbouring parcels instead of granting the landowner the injunction and eviction he wanted.

What this practically means

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Executive summary

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By a Notice of Motion dated 13th April 2023 brought under Article 162(2)(b) of the Constitution and Order 40 Rules 1 and 4 and Order 51 Rule 1 of the Civil Procedure Rules 2010, the Plaintiff, registered proprietor of land parcel Kisau/Sakai/522, sought temporary and permanent injunctions against the Defendants (beneficial owners of the adjoining parcel), a boundary demarcation order directing the Makueni Land Registrar and Government County Land Surveyor to establish the boundary, a survey report within seven days, an eviction order, and security for compliance. The Plaintiff alleged the Defendants encroached about 20 metres and erected a permanent house, and obstructed a boundary verification exercise. The Respondents denied encroachment, asserted existing beacons, and alleged the County Surveyor was biased. The Defendants did not file submissions. The court identified a single issue: whether the Applicant met the threshold for an injunction. Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, it held it was undisputed that the Applicant is the registered proprietor and that the boundary is a fixed one under Section 19 of the Land Registration Act, taking the matter outside the Land Registrar's jurisdiction and within the survey office's mandate under Sections 15-17. Noting the existence of a genuine boundary dispute, the court, in the interest of justice, granted only order No 4 - the boundary demarcation by the Land Registrar and County Land Surveyor - and declined the injunctive, eviction and ancillary prayers, ordering each party to bear its own costs.

Key legal issues

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01

Whether the Applicant met the threshold for the grant of an order of injunction

Holding

The court found a dispute as to encroachment existed and, in the interest of justice, granted only the boundary demarcation order (order No 4) rather than injunctive relief

Reasoning

The court applied the Giella v Cassman Brown principles and the Mrao definition of a prima facie case. It held it was not in dispute that the Applicant is the registered proprietor of Kisau/Sakai/522 and that the boundary between the parcels is fixed, taking the dispute outside the Land Registrar's jurisdiction. Given the dispute over encroachment, the court granted only the survey/boundary demarcation prayer and allowed the rest of the application to fall away, with each party bearing its own costs.

p. 3

Legal principles established

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  • The principles for granting an interlocutory injunction are those in Giella v Cassman Brown: prima facie case with probability of success, irreparable harm not adequately compensable by damages, and balance of convenience if in doubt
  • A prima facie case in a civil application is a genuine and arguable case in which a right has apparently been infringed so as to call for an explanation or rebuttal
  • Where the boundary between two parcels is a fixed boundary, the dispute does not fall within the jurisdiction of the Land Registrar but is addressed under Sections 15-17 of the Land Registration Act by the office responsible for the survey of land

Court orders

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  1. 1.The application is allowed in terms of order No 4 of the application, being an order that the Makueni Land Registrar and the Government County Land Surveyor visit land parcels Kisau/Sakai/522 and Kisau/Sakai/425 and establish and demarcate the boundary between them
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya 2010Article 162(2)(b)
  • Civil Procedure Rules 2010Order 40 Rules 1 and 4; Order 51 Rule 1
  • Land Registration ActSections 15-17
  • Land Registration ActSection 19

Cases cited (2)

  • Giellla v Cassman Brown & Co Ltd
    [1973] EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    (2003) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya 2010; Order 40 Rules 1 and 4 and Order 51 Rule 1 of the Civil Procedure Rules 2010

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, "Mwanthi v Muoka & another (Both being sued on behalf of the Estate of Kavini Muoka Masku - Deceased) (Environment & Land Case E016 of 2022) [2024] KEELC 4606 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 13th April 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4606/eng@2024-06-05

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