Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment· [2014] KEELC 147 (KLR)

Teresia Wangari Mwangi & another v Kiraton Investments Limited & 3 others [2014] KEELC 147 (KLR)

Environment and Land Court
1 October 2014
PNP. Nyamweya
3,267 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court refused to protect buyers of an Eastleigh plot because they could not prove their vendor ever owned it.

What this practically means

#

Executive summary

#
This is a ruling on a Notice of Motion dated 9th September 2013 by the 1st Plaintiff seeking a temporary injunction, pending the hearing of the main suit, restraining the Defendants from entering, registering, building on, selling, charging or otherwise interfering with LR No. 209/7260/187 (formerly ES 38 Eastleigh Sewerage Depot). The 1st Plaintiff claimed to be a bona fide co-purchaser and owner, relying on a 1995 allotment letter from the City Council of Nairobi, a beacon certificate, a payment of Kshs 40,000/- and a purchase from the Eastleigh Water and Sewerage Welfare Association. She alleged that the 2nd Defendant, a former Councillor trading as the 1st Defendant, irregularly had the allottees' list amended and sold the suit property to the 4th Defendant, who obtained a lease in 2012. The 2nd and 3rd Defendants opposed: the 3rd Defendant, the allocating authority, contended the ES-series plots were non-existent, had been cancelled by its Town Planning Committee, and that the 1st Defendant held a Council-approved lease. Applying the Giella v Cassman Brown test, the court found no prima facie case: there was no evidence the Plaintiffs' vendor had been allocated the property, the plans produced were unapproved, and the allocation was contested by the allocating authority with evidence of cancellation. Allegations of fraud on both sides could not be resolved at the interlocutory stage. The court also noted the possible abuse of process given the subsisting Chief Magistrate's Court suit. The application was dismissed with costs to the Plaintiffs.

Key legal issues

#
01

Whether the 1st Plaintiff established a prima facie case warranting a temporary injunction

Holding

No prima facie case was established. The Plaintiffs produced no evidence that the entity from which they purchased had been allocated the suit property; the survey plans were unapproved; and the allocating authority, the 3rd Defendant, asserted the plot was non-existent and produced correspondence and minutes evidencing cancellation of the allotment.

Reasoning

The court applied the Giella v Cassman Brown test and the Mrao definition of a prima facie case. Although the 1st Plaintiff exhibited a 1995 allotment letter, payment receipt and beacon certificate, she could not show allocation to her vendor, the Eastleigh Water and Sewerage Welfare Association. The 3rd Defendant, as allocating authority, produced evidence that ES-series plots were nullified and that a registered lease had since issued to the 4th Defendant. Allegations of fraud and corruption on both sides could not be determined at an interlocutory stage without evidence subjected to examination.

p. 6
02

Whether the present suit constitutes an abuse of the process of the court given the subsisting Chief Magistrate's Court suit

Holding

The court noted that the Plaintiffs' suit in Chief Magistrate's Court Suit No. 1796 of 2009 appeared to be still subsisting, and that the possibility existed that the present suit might be an abuse of court process.

Reasoning

From the rulings and judgments annexed by the Plaintiffs, including the ruling of 18th November 2012 directing the Plaintiffs to file separate suits and the judicial review judgment of 1st October 2013, it appeared the Chief Magistrate's suit was still subsisting. The 1st Plaintiff herself described that suit as having 'stalled'. This raised the possibility of abuse of process, reinforcing the court's reluctance to grant interlocutory relief.

p. 5

Legal principles established

#
  • The test for a temporary injunction requires the applicant to establish a prima facie case and irreparable loss not compensable by damages; failing both, the court may decide on the balance of convenience
  • A prima facie case is a genuine and arguable case in which a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party

Court orders

#
  1. 1.The prayers sought in the Plaintiffs' Notice of Motion dated 9th September 2013 are declined and the application is dismissed
  2. 2.The Plaintiffs shall meet the costs of the said Notice of Motion

Authorities

#

Legislation

  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder 51 Rules 1 and 3
  • Civil Procedure RulesOrder 40 Rule 1
  • Constitution of Kenya, 2010Article 40

Cases cited (4)

  • Giella vs Cassman Brown & Co Ltd
    (1973) EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Grace Muthoni Mwaura -vs- Cllr. Josphat Kiaragu Waichahi & others
    ELC No. 474 of 2013
  • R -vs- Commissioner of Lands & 27 others Exparte Jane Wairimu Mwangi & 9 Others
    (2013) eKLR, Nairobi High Court Judicial Review Misc. App. No. 163 of 2012
Jurisdiction invoked
Inherent jurisdiction under section 3A of the Civil Procedure Act and Order 51 Rules 1 and 3, Order 40 Rule 1 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Teresia Wangari Mwangi & another v Kiraton Investments Limited & 3 others [2014] KEELC 147 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/147/eng@2014-10-01

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