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ELCDismissedNot stated in the judgment (petition filed 3 October 2024)· [2025] KEELC 539 (KLR)

Nyamongo v Catholic Diocese of Kisii (St. Charles Lwanga Kisii Central Church) & 4 others (Environment & Land Petition E001 of 2024) [2025] KEELC 539 (KLR)

Environment and Land Court
12 February 2025
1,364 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kisii landowner who hid earlier lawsuits from the court lost his bid to stop a neighbour's multi-million shilling construction on disputed land.

What this practically means

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Executive summary

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The petitioner commenced a petition on 3 October 2024 claiming ownership of Nyaribari Chache/B/B/Boburia/4475, alleging it was fraudulently transferred through fictitious fronts to the 1st respondent, and sought a declaration of ownership, cancellation of the 1st respondent's title and a permanent injunction. Together with the petition he filed a notice of application dated 2 October 2024 seeking an interim injunction restraining the 1st respondent from developing or transferring the suit land pending the petition. The 1st respondent, through Mobesh Ratemo, replied that she purchased the land in February 2016 for Kshs. 3,500,000/= after due diligence, was registered on 13 March 2016, built a perimeter wall and has possessed the land for eight years, now erecting a multi-purpose complex. She further disclosed that the petitioner had sued Annah Kerubo Ocharo and Sam Nyaberi Mose in Kisii CMCC No. 29 of 2016, which was dismissed on 21 November 2018 under Order 17 Rule 2(1), and that his injunction application in Kisii CMCC/ELC No. E006 of 2023 was dismissed on 24 April 2023. Applying Giella vs Cassman Brown, the court held the petitioner failed to demonstrate a prima facie case, having concealed the previous litigation and having taken no action for eight years against the 1st respondent in possession. The court also questioned the suit's framing as a constitutional petition, invoking the doctrine of constitutional avoidance, and found the balance of convenience favoured the 1st respondent given the ongoing multi-million shilling project. The application was dismissed with costs.

Key legal issues

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01

Whether a prima facie case was established

Holding

No prima facie case; the petitioner concealed the previous suit Kisii CMCC No. 29 of 2016 against the very transferors he claims are fictitious, and did not act since the 1st respondent took possession in 2016

Reasoning

The court held the petitioner failed to disclose prior litigation with Annah Kerubo Ocharo and Sam Nyaberi Mose, dismissed 21 November 2018, and that his injunction in CMCC/ELC No. 6 of 2023 was dismissed on 24 April 2023. He never sought to reinstate the dismissed suit nor refuted the 1st respondent's possession since 2016, undermining his claim of continued ownership.

p. 3
02

Whether the suit was properly framed as a constitutional petition

Holding

The court was not persuaded it is a proper constitutional petition; declaration of ownership and cancellation of title belong in an ordinary plaint under constitutional avoidance

Reasoning

The court observed at the outset that a claim for declaration of ownership and nullification of title does not require a constitutional petition, applying the doctrine of constitutional avoidance, while reserving liberty for persuasion otherwise at later stages of the proceedings.

p. 3
03

Balance of convenience

Holding

Even if the court were in doubt, the balance of convenience tilts towards the 1st respondent in possession for 8 years and constructing a multi-million shilling project, with no evidence the petitioner could compensate loss

Reasoning

The 1st respondent purchased in 2016, did due diligence, was registered on 13 March 2016, built a perimeter wall and used the land via a church gate for eight years. Stopping the construction would cause heavy loss, and the applicant gave no evidence of ability to make good that loss.

p. 3

Legal principles established

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  • The Giella vs Cassman Brown principles govern injunction applications: prima facie case, irreparable loss, and balance of convenience
  • Claims for declaration of ownership and nullification of title should be brought by ordinary plaint, applying the doctrine of constitutional avoidance
  • Failure to disclose previous material litigation amounts to unclean hands

Court orders

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  1. 1.The application dated 2 October 2024 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2 (1)

Cases cited (1)

  • Giella vs Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land (petition filed in the ELCK at Kisii); specific enabling provision not stated in the judgment

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, "Nyamongo v Catholic Diocese of Kisii (St. Charles Lwanga Kisii Central Church) & 4 others (Environment & Land Petition E001 of 2024) [2025] KEELC 539 (KLR)", Case Analysis (2025). Not stated in the judgment (petition filed 3 October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/539/eng@2025-02-12

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