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ELCDismissedNotice of Motion dated 21st December 2023 (ELC suit, Kajiado)· [2024] KEELC 7397 (KLR)

Musau v Muleu & 3 others (Environment & Land Case E057 of 2023) [2024] KEELC 7397 (KLR)

Environment and Land Court
7 November 2024
LKL. Komingoi
1,475 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer was denied an injunction because his title was issued while the land was already the subject of another pending court case.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kajiado (L. Komingoi, J) on a Notice of Motion dated 21st December 2023 by the Plaintiff, Simon Mutiso Musau, seeking a temporary injunction restraining the Defendants from trespassing on, selling, sub-dividing, leasing or developing parcel Loitokitok/Rombo 'B'/4453 pending the hearing of the main suit, and an order for police enforcement. The Applicant claimed to be the registered owner of the parcel since 20th June 2022, having purchased it after the sub-division of Rombo Group Ranch, and said the Defendants had disrupted his farming. The Defendants opposed, contending that he was an agent of Salash Keturai, the 11th Defendant in Kajiado ELC E043 of 2022, a suit in which status quo orders had been issued in favour of members of Rombo Group Ranch, and that he acquired the land during the pendency of that suit. Relying on Giella v Cassman Brown and Mrao Ltd v First American Bank, the court framed two issues: whether the threshold for an injunction was met and costs. The court held that the Applicant's title was issued during the pendency of ELC E043 of 2022, contrary to the doctrine of lis pendens, which remains applicable under common law per Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, calling the legitimacy of the title into question. No prima facie case, irreparable injury or balance of convenience in his favour was established. The application was dismissed with costs to abide the outcome of the main suit.

Key legal issues

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01

Whether the Applicant established a prima facie case for a temporary injunction

Holding

No prima facie case established; the title was issued during the pendency of ELC E043 of 2022, calling its legitimacy into question

Reasoning

The Applicant claimed ownership of the suit property acquired on 20th June 2022, during the pendency of ELC E043 of 2022 in which the members of Rombo Group Ranch were protected by status quo orders. He failed to state how and from whom he acquired the property, and the issuance of his title during pending litigation attracted the doctrine of lis pendens, undermining the legitimacy of the title and rights conferred by it.

p. 4
02

Whether irreparable injury and balance of convenience favoured the injunction

Holding

No; damages would compensate and the balance of convenience favoured the Defendants given the pending suit involving members of Rombo Group Ranch

Reasoning

The court was not convinced the Applicant would suffer injury not compensable by damages. Further, the balance of convenience tilted against the grant of injunctions because ELC No. E043 of 2022, involving the members of Rombo Group Ranch, was still pending and the court had ordered maintenance of the status quo therein.

p. 4

Legal principles established

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  • The doctrine of lis pendens prohibits dealings with property subject to ongoing litigation and remains applicable under common law notwithstanding the repeal of the ITPA

Court orders

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  1. 1.The Notice of Motion dated 21st December 2023 is dismissed
  2. 2.The costs will abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Indian Transfer of Property ActSection 52

Cases cited (7)

  • Giella Vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao Ltd Vs. First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
  • Gabriel Mbui Vs. Mukindia Maranya
    (1993) eKLR
  • Helga Hahmann Vs. Charles Mumba Mwagandi
    (2008) eKLR
  • Mureithi Vs. City Council of Nairobi
    (1976-1985) EA 331
  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna, Edward Njuguna Kangethe, George James Kangethe, Nguru Auctioneers, Leakey Auctioneers & Joserick Merchants Auc
    [2017] KECA 79 (KLR)
  • Naftali Ruthi Kinyua v Patrick Thuita Gachure & Patrick Thuita Gachure & Another
    [2015] eKLR
Jurisdiction invoked
Order 40 Rules 1 and 2 of the Civil Procedure Rules and Sections 1A, 1B, 3, 3A 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Musau v Muleu & 3 others (Environment & Land Case E057 of 2023) [2024] KEELC 7397 (KLR)", Case Analysis (2024). Notice of Motion dated 21st December 2023 (ELC suit, Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7397/eng@2024-11-07

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