Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in extract (Environment & Land Court suit, Mombasa)· [2024] KEELC 6016 (KLR)

Maina v Nyangweso & 5 others (Environment & Land Case E012 of 2024) [2024] KEELC 6016 (KLR)

Environment and Land Court
18 September 2024
11,600 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~46 min to read original · ~4 min brief

The bottom line

#

A Mombasa landowner with a 1997 title stopped rivals from dealing with his plot, but won't evict them until the full case is heard.

What this practically means

#

Executive summary

#
This omnibus ruling of the Environment and Land Court at Mombasa (Naikuni J) determined two applications simultaneously: the plaintiff's Notice of Motion dated 20th February 2024 seeking an interlocutory mandatory injunction to evict the 3rd, 4th and 5th Defendants from Title No. Mombasa/Mainland South/Block V/48, and the 5th Defendant's Notice of Preliminary Objection dated 22nd May 2024. The plaintiff, registered proprietor since 1997, alleged that in February 2024 he was forcibly evicted by the 2nd and 3rd Defendants, and that the 3rd Defendant relied on a fraudulently obtained title (Mombasa/MS/Block V/48) issued in January 2024 pursuant to judgments in CMCC ELC No. E003 of 2020 (O.S) and ELC Misc. Application No. E037 of 2022, adverse-possession proceedings concerning CR 8831 involving different land. The 5th Defendant countered that the two parcels are one and the same following conversion from the RTA to the LRA regime, and objected that the suit sought judicial review by plaint, was res judicata, and impermissibly appealed the magistrates' decision. The court dismissed the preliminary objection in its entirety, holding the prayer was declaratory under Order 3 Rule 9, that the suit was not res judicata as the plaintiff was not party to the former suits and the parcels differ, and that any aggrieved party could appeal. On the motion, the court found a prima facie case, irreparable harm and balance of convenience favouring the plaintiff, and granted a temporary injunction restraining dealings with the suit property pending trial, but declined the mandatory eviction order as premature. Costs were reserved to the cause and the matter set down for pre-trial and hearing.

Key legal issues

#
01

Whether the preliminary objection met the Mukisa Biscuits threshold

Holding

The objection raised pure points of law (res judicata and jurisdiction) but each ground failed on the merits

Reasoning

The court applied Mukisa Biscuits and allied authorities, found the objection raised pure points of law, but rejected each ground: the prayer was declaratory, the parties and subject property differed from the former suit, and any aggrieved party in the magistrates' suit could appeal.

p. 8
02

Whether the suit is res judicata vis-à-vis CMCC ELC No. E003 of 2020 (O.S) and ELC Misc. Application No. E037 of 2022

Holding

Not res judicata - the plaintiff was not a party to the former suits and the subject parcels are distinct

Reasoning

Section 7 requires the same matter, same parties or those claiming under the same title, a competent court, and a hearing and final determination. The plaintiff was not a party to the former adverse possession suit, and the plaintiff pleaded that the parcel adjudicated there (CR 8831) is not his parcel (Mombasa/Mainland South/Block V/48).

p. 12
03

Whether a judicial review order can be sought by way of a plaint

Holding

The prayer was declaratory, and declaratory relief is properly sought in a plaint under Order 3 Rule 9

Reasoning

Order 3 Rule 9 permits declaratory orders in a plaint, and in Nicholas Njeru the Court of Appeal held there is no limit to the court's powers to grant declaratory orders. The objection on this ground was therefore unsustainable.

p. 9
04

Whether the plaintiff met the Giella/Nguruman threshold for an interlocutory mandatory injunction

Holding

Prima facie case, irreparable harm and balance of convenience were established for a temporary (prohibitory) injunction, but the mandatory injunction to evict was premature

Reasoning

The plaintiff showed a registered title since 1997 and forceful eviction in February 2024, establishing a prima facie case and irreparable harm not compensable in damages, with balance of convenience favouring preservation of the property. However, a mandatory injunction requires a higher threshold and would dispose of the suit at interlocutory stage.

p. 20

Legal principles established

#
  • A preliminary objection must raise a pure point of law and cannot be raised where facts require ascertainment
  • Res judicata only applies where the former suit was heard and finally decided on the merits between the same parties or those claiming under them
  • A declaratory order may be sought by way of a plaint under Order 3 Rule 9 of the Civil Procedure Rules
  • Mandatory injunctions at interlocutory stage are granted only in clear cases and with great caution

Court orders

#
  1. 1.The Notice of Preliminary Objection dated 22nd May, 2024 is found to lack merit and is dismissed entirely
  2. 2.The Notice of Motion application dated 20th February, 2024 is allowed in the following terms: a temporary injunction order is issued barring the parties from dealing with the suit property in any manner pending the hearing and determination of the suit
  3. 3.An order for mandatory injunction is declined as premature
  4. 4.The matter to be fixed for hearing on 5th December, 2024 with a mention on 5th November, 2024 for Pre-Trial Conference in accordance with Order 11 of the Civil Procedure Rules, 2010
  5. 5.Costs of the applications to be in the cause

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 7, 27(1)
  • Civil Procedure Rules, 2010Order 3 Rule 9; Order 40 Rule 1; Order 51 Rule 1; Order 11
  • Constitution of Kenya, 2010Articles 25(c), 42, 50(1) & (2), 69, 70, 159(2)(d), 162(2)(b), 165(3) & (6)
  • Environment and Land Court ActSection 13
  • Limitation of Actions ActCap. 22 (general reference)

Cases cited (31)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Attorney General & Another v Andrew Mwaura Githinji & another
    [2016] eKLR
  • Nitin Properties Ltd v Jagjit S. Kalsi & another
    Court of Appeal No. 132 of 1989 [1995-1998] 2 EA 257
  • United Insurance Company Ltd v Scholastica A Odera
    Kisumu HCC Appeal No. 6 of 2005 (2005) LLR 7396
  • In the Matter of Siaya Resident Magistrate Court
    Kisumu HCC Misc. App No. 247 of 2003
  • Nicholas Njeru v Attorney General & 8 Others
    [2013] eKLR; Civil Appeal No. 110 of 2011
  • Kenya Anti-Corruption Commission v Lobo & another
    Environment & Land Case 175 of 2009 [2024] KEELC 5261 (KLR)
  • Abok James Odera v John Patrick Machira
    Civil Application No. Nai. 49 of 2001
  • Christopher Kenyariri v Salama Beach
    (2017) eKLR
  • Republic v National Transport & Safety Authority & 10 others Ex-Parte James Maina Mugo
    [2015] eKLR
  • Ware Transport Limited v Third Engineering Bureau of China City Construction Group Co Limited
    Environment & Land Case 252 of 2021 [2024] KEELC 1550 (KLR)
  • Tee Gee Electrics and Plastics Company Limited v Kenya Industrial Estates Limited
    [2005] KLR 97
  • Giella v Cassman Brown & Co. Ltd
  • Nguruman Limited
  • Kenya Commercial Finance Co. Limited v Afraha Education Society
    [2001] Vol. 1 EA 86
  • MRAO Limited v First American Bank of Kenya Ltd & 2 others
    (2003) KLR 125
  • Mbuthia v Jimba Credit Corporation Ltd
  • Edwin Kamau Muniu v Barclays Bank of Kenya Ltd
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
  • Paul Gitonga Wanjau v Gathuthis Tea Factor Company Ltd & 2 others
    (2016) eKLR
  • Amir Suleiman v Amboseli Resort Limited
    [2004] eKLR
  • Robert Mugo wa Karanja v Ecobank (Kenya) Limited & Another
    [2019] eKLR
  • Shepard Homes v Sandham
    (1970) 3 WLR 356
  • Bandari Investments & Co. Limited v Martin Chiponda & 139 others
    [2022] eKLR
  • Malier Unissa Karim v Edward Oluoch Odumbe
    (2015) eKLR
  • Kenya Breweries Ltd v Washington Okeyo
    (2002) EA 109
  • Jay Super Power Cash and Carry Ltd v Nairobi City Council and 20 others
    CA 111/2002
  • Locabail International Finance Limited v Agro Export and others
    (1986) All ER 906
  • Harun Mutwiri v Nairobi City County Government
    [2018] eKLR
  • Kenya Union of Commercial, Food and Allied Workers v Bidco Africa Limited & Another
    [2015] eKLR
  • Hussein Muhumed Sirat v Attorney General & Another
    [2017] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, No. 19 of 2011

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Maina v Nyangweso & 5 others (Environment & Land Case E012 of 2024) [2024] KEELC 6016 (KLR)", Case Analysis (2024). Not stated in extract (Environment & Land Court suit, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6016/eng@2024-09-18

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