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ELCPartially AllowedELC Appeal (Voi Environment and Land Court appeal from Voi PMCC ELC Civil Case No. E047 of 2021)· [2024] KEELC 5071 (KLR)

Mjomba v Mwanjala & 4 others (Environment and Land Appeal E001 of 2024) (Environment and Land) [2024] KEELC 5071 (KLR)

Environment and Land Court
4 July 2024
2,780 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court in Voi ordered both sides of a 3.5-acre land dispute to keep things exactly as they are until the main case is heard.

What this practically means

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Executive summary

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The Environment and Land Court at Voi (E. K. Wabwoto, J) heard the Appellant's appeal against a ruling of Hon. T. N. Sinkiyian (SRM) delivered on 7th July 2022 in Voi PMCC ELC Civil Case No. E047 of 2021, in which the trial magistrate dismissed the Appellant's application dated 30th September 2021 seeking status quo and injunctive orders, and struck out the suit against the 4th Respondent. The court framed two issues: whether the trial court erred in striking out the 4th Respondent, and whether it erred in dismissing the Appellant's application. On the first issue, the court held that the 4th Respondent had vacated the suit property after being refunded Kshs. 220,000/= by Brian Mwabora Kinoi, who had fraudulently sold her the land, and that she had no subsisting interest; the trial court could not be faulted. On the second issue, the court held that an appellate court will not lightly interfere with discretionary decisions, but applying Paragraph 32 of the ELC Practice Directions and noting that the 1st, 2nd, 3rd and 5th Respondents admitted occupation and construction, an order of status quo was warranted. The appeal partially succeeded: the lower court ruling was set aside and substituted with a status quo order over the unsurveyed 3.5 acres forming part of Sagalla/Kishamba 'B'/1, restraining transactions, construction and eviction pending determination of the suit. Each party was directed to bear their own costs of the appeal and the Appellant's application, and the file was remitted to the subordinate court for hearing.

Key legal issues

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01

Whether the trial court erred in striking out the 4th Respondent from the suit

Holding

No - the 4th Respondent had vacated the suit property and had no subsisting interest, so her retention served no useful purpose

Reasoning

The 4th Respondent bought the land from Brian Mwabora Kinoi who was charged with obtaining money by false pretences and refunded her Kshs. 220,000/= in the presence of the DCI, after which she left the property. There was no evidence of any transaction or engagement between her and the Appellant, nor of any subsisting interest in the suit property, so the trial court was justified in striking her out.

p. 4
02

Whether the trial court erred in declining to grant injunctive and status quo orders

Holding

Partly - while the refusal of the injunction involved an exercise of discretion not lightly interfered with, an order of status quo was warranted in the interests of justice given the competing occupations

Reasoning

Interference with discretionary decisions requires one of the established grounds, none of which was established for the injunction. However, applying Paragraph 32 of the ELC Practice Directions, and since the 1st, 2nd, 3rd and 5th Respondents admitted occupation and construction, fairness required maintenance of status quo pending the hearing of the suit.

p. 5

Legal principles established

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  • A first appellate court has power to review the facts and evidence and draw its own conclusions
  • An appellate court will not interfere with a discretionary decision unless it is shown the court misdirected itself in law, misapprehended the facts, took into account irrelevant or failed to take into account relevant considerations, or the decision is plainly wrong
  • Order 1 Rule 10(2) of the Civil Procedure Code empowers the court to strike out the name of a party improperly joined or to join a person necessary for the effectual and complete adjudication of the suit

Court orders

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  1. 1.Status quo order issued in respect to the unsurveyed piece of land measuring approximately 3.5 acres forming part of Sagalla/Kishamba 'B'/1 pending hearing and determination of the suit
  2. 2.No transactions, transfers of proprietary interest or construction in respect of the suit property pending hearing and determination of the suit
  3. 3.No eviction of either party from the suit property pending hearing and determination of the suit
  4. 4.Each party to bear own costs of the Appeal and costs of the Appellant's application dated 30th September 2021
  5. 5.Trial court file returned to the subordinate court for hearing and determination of the pending suit

Authorities

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Legislation

  • Evidence Act (Cap. 80)Section 106A
  • Evidence Act (Cap. 80)Section 106B(4)
  • Civil Procedure CodeOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 2 Rule 15
  • Practice Directions on Proceedings in The Environment and Land Courts (Gazette Notice No. 5178 of 2014)Paragraph 32

Cases cited (8)

  • DT Dobie & Company Limited v Joseph Mbaria Muchina & Another
    [1980] eKLR
  • Jack & Jill Supermarket Ltd =Versus= Viktar Maina Ngunjiri
    (2016) eKLR
  • Gladys Nduku Nthuki v Letshego Kenya Limited; Mueni Charles Maingi (Intended Plaintiff)
    [2022] eKLR
  • Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • D.T. Dobbie Kenya Co. Ltd v Joseph Mbaria Muchina & Leah Wanjiku Mbugua
    [1982] KLR 1
  • United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd
    [1985] E.A
  • Giella v Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
On appeal from
Voi Principal Magistrate's Court (ELC Civil Case No. E047 of 2021)
E047 of 2021
Jurisdiction invoked
First appellate jurisdiction under the Environment and Land Court Act over appeals from the subordinate court

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, "Mjomba v Mwanjala & 4 others (Environment and Land Appeal E001 of 2024)  (Environment and Land) [2024] KEELC 5071 (KLR)", Case Analysis (2024). ELC Appeal (Voi Environment and Land Court appeal from Voi PMCC ELC Civil Case No. E047 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5071/eng@2024-07-04

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