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ELCAllowedMakueni ELC Case No. 334 of 2017· [2024] KEELC 6723 (KLR)

Kalumba v Kiswii (Environment & Land Case 334 of 2017) [2024] KEELC 6723 (KLR)

Environment and Land Court
9 October 2024
2,426 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a ruling on the Plaintiff/Applicant's Notice of Motion dated June 14, 2024, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, seeking a conservatory order and/or order of status quo preserving land Parcel No. Makueni/Kiou/1694 pending the hearing of the main suit. The Applicant averred he purchased 2.5 acres to be excised from the parcel from the Defendant in December 2007, and that a judgment in Kilungu MCELC No. 13 of 2022 in favour of Jacquiline Munini had triggered a planned subdivision of the parcel by the Mukaa Sub-County Surveyor, which would defeat his claim. The Respondent filed no response despite service. The court identified whether the Applicant was entitled to the orders sought as the sole issue. Although the Applicant framed the relief as a conservatory order, the court observed such orders are public law remedies not issued in ordinary civil cases and proceeded on interlocutory injunction principles under Giella v Cassman Brown, as informed by Mrao, Nguruman and Mbuthia. It found a prima facie case with probability of success on the sale agreement, held that subdivision would close the subsisting title and alter the substratum of the suit amounting to irreparable harm, and found the balance of convenience favoured maintaining the status quo. The application dated June 14, 2024 was allowed; an injunctive order/order of status quo preserving the parcel was issued pending hearing and determination of the suit, with costs to the Applicant.

Key legal issues

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01

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

Holding

Yes - the sale agreement and supporting material showed the claim was not baseless

Reasoning

The Applicant relied on a sale agreement (annexure FK1a) evidencing purchase of 2.5 acres from the Respondent in December 2007, plus photographs of developments. Applying Mrao, the court held it need not determine ownership finally at interlocutory stage; on the record the claim was not baseless, establishing a prima facie case with probability of success.

p. 5
02

Whether the Applicant would suffer irreparable harm not compensable by damages

Holding

Yes - subdivision would close the existing title and alter the substratum of the suit

Reasoning

The court reasoned that if the subdivision pursuant to the order in Kilungu MCELC No. 13 of 2022 proceeded, the subsisting title would be closed and new titles issued, altering the character of the property and changing the substratum of the suit, a harm not measurable in money.

p. 5
03

Where the balance of convenience lies

Holding

In favour of maintaining the status quo on the suit property

Reasoning

Applying the principle in Wambui v Ougo that in serious conflicts of fact the status quo should be maintained pending trial, the court weighed the hardship to each party and found the balance favoured preserving the property, as the purpose of an injunction is to preserve the suit property pending hearing.

p. 5

Legal principles established

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  • Conservatory orders are public law remedies and are not issued in ordinary civil cases
  • In an interlocutory injunction application the court does not make final findings on contested facts
  • Where there are serious conflicts of fact the status quo should be maintained until trial

Court orders

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  1. 1.An injunctive order and/or order of status quo is hereby issued to preserve land Parcel No. Makueni/Kiou/1694 pending the hearing and determination of the suit herein
  2. 2.The Applicant is awarded costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 40 Rule 1(a), Order 51 Rule 1

Cases cited (10)

  • Board of Management of Uhuru Secondary School v City County Director of Education & 2 others
    [2015] eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Judicial Service Commission v Speaker of the National Assembly & Another
    (2013) eKLR
  • Centre For Rights Education and Awareness (CREAW) & 7 others v Attorney General
    [2011] eKLR
  • Gitirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    (2014) eKLR
  • Giella v Cassman Brown & Co Ltd
    1973 EA 358
  • Mbuthia v Jimba Credit Corporation Ltd
    (1988) KLR
  • Edwin Kamau Muniu v Barclays Bank of Kenya Ltd
    Nbi HCCC No 1118 of 2002
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    (2014) eKLR
  • Virginia Edith Wambui v Joash Ochieng Ougo
    Civil Appeal No. 3 of 1987
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rule 1(a) and Order 51 Rule 1 of the Civil Procedure Rules

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, "Kalumba v Kiswii (Environment & Land Case 334 of 2017) [2024] KEELC 6723 (KLR)", Case Analysis (2024). Makueni ELC Case No. 334 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6723/eng@2024-10-09

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