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ELCDismissedNot stated in the judgment text provided· [2025] KEELC 573 (KLR)

Maisha Mabati Mills Limited v Farm Auto Spares Limited & 2 others; Gregory and another their Capacity as the Joint Receivers and Managers of Nalin Nail Works Limited (In Receivership) (Interested Party) ((In their Capacity as the Joint Receivers and Managers of Nalin Nail Works Limited (In Receivership)) (Environment & Land Case E192 of 2023) [2025] KEELC 573 (KLR)

Environment and Land Court
13 February 2025
4,249 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court refused to block an eviction of Maisha Mabati Mills, finding the company had no strong case and could be compensated with money if it eventually won.

What this practically means

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Executive summary

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The Plaintiff, Maisha Mabati Mills Ltd, moved the Environment and Land Court in Nairobi by Notice of Motion dated November 28, 2023 seeking an interlocutory injunction to restrain the 1st Defendant, Farm Auto Spares Ltd, from taking possession of, evicting it from, or interfering with its property LR No. 209/5443 and the godowns thereon, which it purchased from Kenya Commercial Bank in 2005. The 1st Defendant, registered proprietor of the adjacent LR No. 209/5650, opposed the application through grounds of opposition and a replying affidavit sworn by its Managing Director, Kiram Patel, contending that the dispute was res judicata following the judgment in ELC OS No. 762/2017 delivered on 25th January 2023, that the Plaintiff had encroached 0.0925 hectares onto its land, and that a lawful three-month eviction notice had been published on 29th September 2023. The court framed a single issue: whether injunctive orders should issue pending the hearing of the suit. Applying the Giella v Cassman Brown principles, the court held that the Plaintiff failed to establish a prima facie case: the prior adverse possession judgment, unappealed and un-set-aside, conclusively settled that the Plaintiff's occupation fell short of the statutory period; no written consent for reparcellation under Section 23 of the Land Registration Act was presented; and no evidence demonstrated illegality or procedural failure in the eviction notice. The court further held that the Plaintiff's interest was monetary, the godowns having been leased to tenants, so any harm was quantifiable and compensable in damages. The application was dismissed with costs.

Key legal issues

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01

Whether the Plaintiff established a prima facie case warranting an interlocutory injunction

Holding

The Plaintiff failed to establish a prima facie case: an unappealed judgment in ELC OS No. 762 of 2017 found that its adverse possession claim fell short of the statutory period, no written consent for reparcellation was presented, and no evidence showed the eviction notice was unlawful or unprocedural.

Reasoning

The court reasoned that the prior judgment conclusively settled the adverse possession claim and had not been set aside. Section 23 of the Land Registration Act requires written consent of proprietors for reparcellation, which was absent. Section 152E of the Land Act permits a three-month eviction notice for occupation without consent, and the Plaintiff adduced no evidence of impropriety in its service. The occupation claim was also monetary, being leased to tenants.

p. 8
02

Whether the Plaintiff would suffer irreparable harm not compensable by damages

Holding

No. The Plaintiff's interest in the disputed portion is monetary, having been leased to tenants, so any loss is quantifiable and remediable in damages.

Reasoning

The court found the Plaintiff leased the godowns to tenants whose occupation was visible. Loss arising from eviction would therefore be financial and quantifiable, and could be compensated by an award of damages should the suit ultimately succeed. This failed the second Giella criterion independently of the prima facie case finding.

p. 9
03

Whether the Plaintiff's application was res judicata

Holding

The court did not decide the res judicata objection as a standalone issue, but effectively held that the judgment in ELC OS No. 762/2017 conclusively settled the Plaintiff's adverse possession claim.

Reasoning

The 1st Defendant argued the application was res judicata because ownership and encroachment issues were determined in ELC Case No. 767 of 2017 (OS), delivered 25th January 2023. The court observed that the judgment had not been set aside and found the Plaintiff's occupation fell short of the statutory twelve years, which weighed against finding a prima facie case.

p. 7

Legal principles established

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  • An applicant for an interlocutory injunction must establish a prima facie case with a probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience.
  • The court should be slow to order reparcellation under Section 23 of the Land Registration Act absent the written consent of the landowners, save in exceptional circumstances.
  • Filing a claim for adverse possession over land registered in another's name amounts to an admission of occupation of that land.

Court orders

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  1. 1.The application dated November 28, 2023 is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 159(2)
  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court Act 2011Section 13(7)
  • Land Registration Act, 2012Section 23
  • Land Registration Act, 2012Section 68
  • Land Act 2012Section 28
  • Land Act 2012Section 150
  • Land Act 2012Section 152F
  • Land Act 2012Section 152E(1)
  • Land Act 2012Sections 152A, 152B, 152C, 152E and 152G
  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (5)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Nguruman Limited vs Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Mrao Ltd vs First American Bank of Kenya and 2 Others
    (2003) KLR 125
  • Kenleb Cons Ltd vs New Gatitu Service Station Ltd & Another
    [1990] K.L.R 557
  • David A. Langat & another vs Arap Sigirai & Another
    [2016] KEHC 4846 (KLR)
Jurisdiction invoked
Articles 40, 159(2) and 162(2)(b) of the Constitution of Kenya; Section 13(7) of the Environment and Land Court Act 2011

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, "Maisha Mabati Mills Limited v Farm Auto Spares Limited & 2 others; Gregory and another their Capacity as the Joint Receivers and Managers of Nalin Nail Works Limited (In Receivership) (Interested Party) ((In their Capacity as the Joint Receivers and Managers of Nalin Nail Works Limited (In Receivership)) (Environment & Land Case E192 of 2023) [2025] KEELC 573 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/573/eng@2025-02-13

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