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ELCPartially AllowedNot stated (Petition, Environment and Land Court)· [2024] KEELC 5502 (KLR)

Mae v Musango & 11 others (Environment & Land Petition 19 of 2021) [2024] KEELC 5502 (KLR)

Environment and Land Court
24 July 2024
4,028 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court stopped a man from fencing and farming on a disputed plot until the land case is fully heard, protecting the claimed owner's rights.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Naikuni J) determined a Notice of Motion dated 30th November 2023 by Pascal Mwaringa Mae, the Petitioner, seeking a temporary injunction against the 2nd Respondent, Ali Bakari Mwamunda, restraining interference with Plot No. 2097 Mwanda/Mbalamweni Adjudication pending the hearing of the main Petition. The application was brought under Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Sections 1A, 3, 3A and 63(e) of the Civil Procedure Act. Only the 2nd Respondent opposed, contending the application was misconceived, an abuse of process and res judicata given a ruling of 4th April 2022, and asserting that the plot had been subdivided and that his own parcel was Number 3602. The Court framed two issues: whether the motion met the Order 40 Rule 1 threshold for a temporary injunction, and costs. Applying Giella v Cassman Brown as reinforced by Nguruman, the Court found the Petitioner had established a prima facie case with probability of success as registered owner alleging trespass; that injury to the suit property was not adequately compensable in damages; and that the balance of convenience favoured preservation of the property pending oral hearing of the Petition. The 2nd Respondent's res judicata objection did not prevail, the Court holding that on an interlocutory application it makes no final findings of contested fact. The Court declined the prayer directing the OCS Ndonya Police Station to enforce compliance as unnecessary, and ordered costs to be in the cause. The application was allowed, with an injunction issue, and the main Petition set down for hearing on 11th December 2024 after a pre-trial conference on 15th October 2024.

Key legal issues

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01

Whether the Applicant met the prima facie case threshold

Holding

The Petitioner demonstrated a prima facie case with a probability of success, having asserted ownership of Plot No. 2097 and shown the 2nd Respondent invading it by erecting a fence and cultivating

Reasoning

The Court applied the Mrao definition of a prima facie case. The Petitioner claimed to be the legal and absolute owner of Plot No. 2097, contested the land committee proceedings, and produced photographs showing the 2nd Respondent's encroachment by fencing and cultivation. On that material the Court found an apparent infringement of a right requiring rebuttal, satisfying the first Giella condition.

p. 6
02

Whether the Applicant would suffer irreparable injury not compensable by damages

Holding

The Applicant satisfied the second condition; loss of the suit property could not adequately be compensated by an award of damages

Reasoning

Applying Nguruman and Pius Kipchirchir Kogo, the Court held that injury to land rights is not readily quantifiable in monetary terms. The Applicant showed his rights as proprietor of the suit property were at risk and that the Respondents ought to be restrained pending the hearing; damages would not be an adequate remedy.

p. 7
03

Whether the balance of convenience favoured granting the injunction

Holding

The balance of convenience tilted in favour of the Petitioner; preserving the suit property pending trial carried the lower risk of injustice

Reasoning

Guided by Kogo, Paul Gitonga Wanjau and Amir Suleiman, the Court reasoned that there is a lower risk in granting the injunction than refusing it, particularly since it had not had the opportunity to interrogate all documents bearing on the history of the claim. Preservation of the status quo pending the hearing of the main Petition was the just course.

p. 8
04

Whether the application was res judicata as contended by the 2nd Respondent

Holding

The Court did not uphold the res judicata objection; the ruling of 4th April 2022 had merely directed oral hearing of the main Petition, and the preservation orders were necessary in the meantime

Reasoning

The 2nd Respondent argued the plot issue had been settled by the ruling of 4th April 2022 and by the adjudication history showing the plot subdivided among third parties. The Court nonetheless found the Applicant had a case and that preservation was needed pending the hearing of the main Petition, without making final findings on contested facts, consistent with Mbuthia v Jimba Credit Corporation.

p. 9

Legal principles established

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  • The three Giella conditions for an interlocutory injunction must all be satisfied sequentially, with no leap-frogging
  • A prima facie case is one where, on the material presented, a tribunal would conclude a right has apparently been infringed calling for an explanation from the opposite party
  • On an interlocutory injunction application the court does not make final findings of contested fact but weighs the relative strength of the parties' cases

Court orders

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  1. 1.The Notice of Motion application dated 30th November, 2023 is found to have merit and is allowed as per the Court's discretion and the preservation of the suit property
  2. 2.An order restraining the 2nd Respondent, Ali Bakari Mwamunda, his agents, servants, attorneys, workmen or persons acting under his instructions from encroaching, alienating, disposing, wasting, cultivating, damaging, constructing on or in any manner interfering with Plot No. 2097 Mwanda/Mbalamweni Adjudication pending the hearing of the main Petition
  3. 3.The matter to be heard on 11th December, 2024, with a mention on 15th October, 2024 for a Pre-Trial Conference pursuant to Order 11 of the Civil Procedure Rules, 2010
  4. 4.Costs of the application to be in the cause
Jurisdiction invoked
Order 51 Rules 1 and Order 40 Rule 1(a)(b), 2(1) of the Civil Procedure Rules, 2010; Sections 1A, 3, 3A & 63(e) of the Civil Procedure Act, Cap. 21

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, "Mae v Musango & 11 others (Environment & Land Petition 19 of 2021) [2024] KEELC 5502 (KLR)", Case Analysis (2024). Not stated (Petition, Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5502/eng@2024-07-24

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