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ELCOtherNot stated in the judgment extract· [2024] KEELC 7158 (KLR)

Tuli & another v Mwaruwa & 4 others (Environment & Land Case E37 of 2024) [2024] KEELC 7158 (KLR)

Environment and Land Court
30 October 2024
MNMwangi Njoroge
2,479 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Malindi's Environment and Land Court froze a disputed 75-acre plot as it stands today, ordering everyone to keep off changes until the land case is fully heard.

What this practically means

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Executive summary

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The plaintiffs moved the Environment and Land Court at Malindi by Notice of Motion dated 17th April 2024 seeking temporary injunctions restraining the 1st Defendant from entering, occupying, cultivating or interfering with Plot No. Miyuni/Mleji/480 (approximately 75 acres at Kawala Village), pending inter partes hearing and pending determination of the suit. The application was supported by the affidavit of the 1st plaintiff, who deponed that the plaintiffs were born and raised on the land, had developed it and buried relatives there, and recounted a long history of tribunal, adjudication board and court disputes, including an allegedly coerced consent to vacate and the 1st Defendant's allegedly fraudulent acquisition of title. The 1st Defendant countered that he was the registered owner, that the plaintiffs' father had invaded the land, that the Provincial Land Appeals Committee awarded him the entire land, that eviction orders were executed in Kaloleni SRMCC No. 15 of 2007, and that a prior ELC petition by the plaintiffs had been dismissed. The court framed a single issue: whether the plaintiffs met the threshold for interlocutory relief under Order 40 CPR and the Giella criteria. It found a prima facie case, given the litany of conflicting decisions warranting deeper examination, found risk of irreparable loss, and held the balance of convenience lay in preserving the status quo. Rather than granting the injunction sought, the court ordered all parties to maintain the status quo of the physical land and the titles register pending trial, with directions on trial bundles and a mention on 16/1/2025.

Key legal issues

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01

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

Holding

Yes - the conflicting tribunal, adjudication and court decisions and the claim of long possession warranted a deeper examination, establishing a prima facie case

Reasoning

The court noted the suit property had been subject to multiple tribunal, adjudication board and court decisions both for and against the parties. The plaintiffs claimed long-standing possession and a decision granting them half the land. The court held that this litany of conflicting decisions, together with the allegation that they were coerced into signing a vacation consent, required deeper examination at trial and sufficed to show an apparently infringed right.

p. 5
02

Whether irreparable loss would be suffered absent the interlocutory orders

Holding

The court found a risk of irreparable loss and damage if the orders were not granted or the status quo not preserved

Reasoning

The court reasoned that should the suit ultimately succeed, the applicants may suffer irreparable loss if the land's current position were disturbed. It therefore moved to balance of convenience, which it found lay in preserving the present status of the suit land and title pending the hearing and determination of the suit.

p. 5
03

Where the balance of convenience lies

Holding

The balance of convenience lies in preserving the status quo of the land and title pending suit

Reasoning

Having found a prima facie case and risk of irreparable harm, the court applied the third Giella condition. It held that preserving both the physical state of the land and the entries in the titles register held by the 4th and 5th respondents best served justice pending full trial of the competing claims.

p. 5

Legal principles established

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  • A prima facie case is an arguable case which, on the pleadings and affidavit evidence, shows an infringement of a right requiring an answer from the opposing party

Court orders

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  1. 1.All parties shall maintain or preserve the present status quo of the physical land on the ground and as reflected in the land titles register held by the 4th and 5th respondents pending the hearing and determination of the present suit
  2. 2.The plaintiffs to file their trial bundles, duly indexed and paginated, within 30 days from the date of the ruling
  3. 3.The defendants to file their trial bundles within 30 days of the expiry of the period granted to the plaintiff
  4. 4.Suit to be mentioned on 16/1/2025 for issuance of a hearing date

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40(1)(a) and (b)

Cases cited (3)

  • Giella v Cassman Brown & Company Limited
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Moses C. Muhia Njoroge & 2 others v Jane W Lesaloi and 5 others
    (2014) eKLR
Jurisdiction invoked
Order 40(1)(a) and (b) of the Civil Procedure Rules 2010 (interlocutory injunction jurisdiction of the ELC)

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, "Tuli & another v Mwaruwa & 4 others (Environment & Land Case E37 of 2024) [2024] KEELC 7158 (KLR)", Case Analysis (2024). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7158/eng@2024-10-30

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