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ELCDismissedMachakos HCCC (Notice of Motion dated 26th July 2012)· [2013] KEELC 151 (KLR)

Josephat Mwanzia Kasyoka v Peter Muinde Mbiti & 2 others [2013] KEELC 151 (KLR)

High Court of Kenya
15 November 2013
3,034 words in judgment
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The bottom line

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The High Court in Machakos dismissed a landowner's bid to stop construction on a disputed Mlolongo plot because he lacked documents proving he owned it.

What this practically means

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Executive summary

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The Plaintiff moved the court by Notice of Motion dated 26th July 2012 under Order 40 Rules 1(a), 2 and 4 and Order 51 Rule 10 of the Civil Procedure Rules and sections 3 and 63(c) of the Civil Procedure Act, seeking a temporary injunction restraining the Defendants from entering, trespassing on, building on or occupying plot no. 4 Mlolongo Ngwata Phase II C, also referred to as plot no. 329 Kasina Housing Estate, pending trial. The Plaintiff claimed he was allotted the property in 2003 by Mavoko Quarry Self Help Group (Mavoko Land Development Company) and later allotted plot 330 under the Kasina Housing Scheme, and alleged the society's title was a forgery. The 1st and 2nd Defendants denied his interest, asserting he held only plot 330, while the 3rd Defendant claimed he purchased plot 329 from the 2nd Defendant for Kshs 5,000,000, took possession and developed it with funds including a Kshs 6,000,000 loan. The sole issue framed was whether the Plaintiff met the Giella v Cassman Brown conditions. The court, per J.M. Mutungi J, found no prima facie case, as the Plaintiff's documents showed a temporary allotment of plot 4 and allotment of plot 330, with no evidence linking them to plot 329; no irreparable loss beyond damages; and the balance of convenience favouring the 3rd Defendant in possession. The application was dismissed with costs to the Defendants on 15th November 2013.

Key legal issues

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01

Whether the Plaintiff established a prima facie case for a temporary injunction over plot no. 329

Holding

No prima facie case was established; the Plaintiff's claim to plot 329 was unsupported by evidence, his own documents showing temporary allotment of plot 4 and allotment of plot 330

Reasoning

The court found the Plaintiff's own documents showed only a temporary allotment letter for plot 4 Mlolongo Ngwata Phase II C and a 2007 allotment of plot 330. No evidence connected plot 4 or 330 to plot 329, which the Defendants denied belonged to him. Following Mrao Ltd v First American Bank, an apparently infringed right was not demonstrated.

p. 5
02

Whether the Plaintiff would suffer irreparable loss not compensable by damages

Holding

No; any loss could be compensated by an award of damages, the value of the plot being determinable at trial

Reasoning

The court held the Plaintiff did not demonstrate what loss he would suffer or that such loss could not be compensated in damages. The value of the suit plot could be ascertained at the conclusion of the case, so damages would be an adequate remedy if he succeeded at trial.

p. 5
03

Where the balance of convenience lies

Holding

The balance of convenience tilts in favour of the 3rd Defendant, who purchased the plot, took possession and made substantial unrebutted investment

Reasoning

The 3rd Defendant demonstrated purchase from the 2nd Defendant, possession, commencement of development and substantial expenditure including a Kshs 6,000,000 loan. That evidence of substantial investment was not rebutted by the Plaintiff, who had made no financial contribution to the property he sought to injunct.

p. 5

Legal principles established

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  • A prima facie case is one in which, on the material presented, the court concludes that there exists a right which has apparently been infringed so as to call for an explanation or rebuttal from the opposite party (Mrao Ltd v First American Bank of Kenya Ltd)

Court orders

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  1. 1.The Plaintiff's notice of motion application dated 26th July 2012 is dismissed
  2. 2.Costs to the Defendants
Jurisdiction invoked
Order 40 Rules 1(a), 2 and 4 and Order 51 Rule 10 of the Civil Procedure Rules; sections 3 and 63(c) of the Civil Procedure Act

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, "Josephat Mwanzia Kasyoka v Peter Muinde Mbiti & 2 others [2013] KEELC 151 (KLR)", Case Analysis (2013). Machakos HCCC (Notice of Motion dated 26th July 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/151/eng@2013-11-15

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