Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 10th July 2013· [2014] KEELC 193 (KLR)

Nancy Wangui Gathu v Michael Kiarie Daniel & 3 others [2014] KEELC 193 (KLR)

High Court of Kenya
25 July 2014
LGL.N. Gacheru
1,936 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The High Court of Kenya dismissed a landowner's injunction application because she couldn't prove a strong enough ownership claim to stop development on disputed plots.

What this practically means

#

Executive summary

#
The plaintiff, Nancy Wangui Gathu, moved the court by Notice of Motion dated 10th July 2013 under Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules seeking a temporary injunction restraining the defendants from constructing, alienating, surveying or developing plots 1506 and 1507 of the Kiambu Dandora land Zone 13 in LR 11379/3, and from evicting her, pending trial. She claimed she purchased the plots from Kiambu Dandora Farmers Co. Ltd in 2011, had constructed a permanent house, and that the 1st and 3rd defendants, with Mungiki men, had invaded the plots, destroyed crops and begun building. The 1st defendant denied ever entering the property. The 2nd defendant and the interested party asserted that the interested party owned the property, having purchased plots 770 and 771 from Umoja III Housing Resettlement Scheme in October 2005, and that the plaintiff had shown no ownership documents nor disclosed a pending High Court suit (HCCC No 393 of 2008) over ownership of LR 11379/3. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the court found two different entities had sold plots bearing different numbers to the parties over the same physical location. The plaintiff, not being in possession and lacking indefeasible title, failed to establish a prima facie case with probability of success; damages would suffice. The application was dismissed entirely with costs in the cause.

Key legal issues

#
01

Whether the plaintiff established a prima facie case with probability of success

Holding

She did not; she is not in possession and no indefeasible title was shown at the interlocutory stage

Reasoning

The plaintiff held certificates of allotment from Kiambu Dandora Farmers Co. Ltd while the interested party held receipts from Umoja III Housing Settlement Scheme for plots with different numbers. Two different entities sold plots to the parties, and although the physical location appears to be one, ownership documents had to be tested at trial. The plaintiff was not in possession and no indefeasible title was demonstrated, so the first Giella condition failed.

p. 3
02

Whether damages would be an adequate remedy

Holding

Yes; hence the balance of convenience need not be considered

Reasoning

Having found no prima facie case, the court held that damages would adequately compensate the plaintiff, making it unnecessary to consider the balance of convenience. Failure to satisfy the first two Giella conditions was fatal to the application regardless of the third.

p. 3

Legal principles established

#
  • Conditions for grant of interlocutory injunction: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt
  • Definition of a prima facie case in civil applications

Court orders

#
  1. 1.The Notice of Motion dated 10th July 2013 is dismissed entirely with costs in the cause
Jurisdiction invoked
Order 40 Rule 1, 2 & 3 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nancy Wangui Gathu v Michael Kiarie Daniel & 3 others [2014] KEELC 193 (KLR)", Case Analysis (2014). Notice of Motion dated 10th July 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/193/eng@2014-07-25

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