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ELCDismissedNotice of Motion dated 18th April 2013· [2013] KEELC 156 (KLR)

Grace Muthoni Mwaura v Maurice Kihoro Wanduto & 2 others [2013] KEELC 156 (KLR)

High Court of Kenya
20 December 2013
MGMARY M. GITUMBI
1,545 words in judgment
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The bottom line

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The High Court refused a temporary injunction because the land-seeker could not show a genuine, arguable ownership claim over a disputed Eastleigh plot.

What this practically means

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Executive summary

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The Plaintiff/Applicant sought a temporary injunction restraining the Defendants from building, excavating or selling land parcel L.R. No. 209/7260/191 (formerly Plot ES 11 Eastleigh Sewerage Depot) pending trial. She claimed ownership through a sale agreement with Njoki Njambi, holder of a 1995 letter of allotment from the 3rd Defendant (the Council), which endorsed the transfer and later approved her architectural drawings. The 1st Defendant claimed the same parcel as Plot No. 30 Section III Eastleigh, purchased from Anthony Waweru Wachira, originally allocated to Kenton Limited, asserting he had paid transfer and survey fees, obtained a Beacon Certificate and approved building plans, and had constructed three floors. The 3rd Defendant's Acting Director of City Planning deponed that the ES series plots were products of attempted land grabbing, were not recognised, and transactions over them were nullities; she also noted the endorsed transfer to the Plaintiff was unsigned and undated, and payment made ten years after allocation was a nullity. Applying the Giella v Cassman Brown conditions and the Mrao definition of a prima facie case, the court held the Plaintiff had not shown a prima facie case with high chances of success, given the Council's declaration seriously doubting the authenticity of her claim and the unresolved issue whether the two plots are the same. The other Giella conditions were not examined. The application was dismissed with costs in the cause.

Key legal issues

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01

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

Holding

No - the claim was seriously doubted by the 3rd Defendant's declaration that the ES series plots do not exist, so the application failed at the first Giella threshold

Reasoning

The Plaintiff's claim rested on a letter of allotment to a third party (Njoki Njambi) and a sale agreement. The 3rd Defendant, custodian of land records and the allocating authority, declared the ES series plots non-existent and transactions over them nullities. Whether the Suit Plot and Plot No. 30 are the same remains for trial. On this material the Plaintiff could not show an apparently infringed right, so the injunction was refused without examining the other Giella conditions.

p. 3

Legal principles established

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  • The conditions for granting an interlocutory injunction are a prima facie case with probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience
  • A prima facie case in a civil application is a genuine and arguable case showing an apparently infringed right calling for rebuttal

Court orders

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  1. 1.The Notice of Motion dated 18th April 2013 is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Cases cited (2)

  • GIELLA versus CASSMAN BROWN
    (1973) EA 358
  • MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    (2003) KLR 125
Jurisdiction invoked
Inherent jurisdiction of the High Court to grant interim relief pending trial (Civil Procedure Act/Civil Procedure Rules)

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, "Grace Muthoni Mwaura v Maurice Kihoro Wanduto & 2 others [2013] KEELC 156 (KLR)", Case Analysis (2013). Notice of Motion dated 18th April 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/156/eng@2013-12-20

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