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ELCDismissedNot stated in judgment (relates to HCCC 6206 of 1992, Joreth Ltd vs Lewis Kibue and Others)· [2014] KEELC 463 (KLR)

Christopher Wachira Githui v Joreth Limited & another [2014] KEELC 463 (KLR)

High Court of Kenya
4 March 2014
PNP. NYAMWEYA
2,476 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court of Kenya refused to stop an eviction because the buyer could not prove ownership or honour a payment deal, so documents matter.

What this practically means

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Executive summary

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The Plaintiff, by an Amended Chamber Summons dated 12th February 2013, sought a temporary injunction restraining the Defendants from evicting him from, selling, transferring or interfering with Parcel No. L.R. 13330/506 (Plot No. 226, Thome Farmers No. 5 Limited Estate, Nairobi), and to retain possession pending trial. He claimed to have bought Plot 226 from Stanley Gichuki Maitho, an allottee of Thome Farmers No. 5, which he said had purportedly bought the land from the 1st Defendant. He relied on a sale agreement, share certificate, a 1974 directors' resolution, and a consent order in HCCC 6206 of 1992 requiring payment of Kshs 200,000 for titles, of which he paid only Kshs 40,000. He was evicted in October 2012 pursuant to distress-for-rent and eviction orders obtained by the 2nd Defendant, which claimed to have purchased the suit property from the 1st Defendant. Both Defendants denied the Plaintiff's interest, asserting registered title and that the 2nd Defendant was a bona fide purchaser. Justice P. Nyamweya framed the question as whether the Plaintiff met the Giella vs Cassman Brown requirements for a temporary injunction and the stricter requirements for a mandatory injunction per Kenya Breweries v Okeyo. The court found no prima facie case: the Plaintiff produced no evidence of title vesting in Thome Farmers No. 5, no agreement with the 1st Defendant, and had not complied with the 2002 consent order. The court noted the Dr. Joseph arap Ngok principle that a holder of a good title takes precedence in cases of double allocation, but left the validity of the 2nd Defendant's title and the effect of the 1st Defendant's agreement with Thome Farmers No. 5 for full trial. The application was denied 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 prima facie case was established; the Plaintiff produced no evidence of title in Thome Farmers No. 5 Ltd, no agreement with the 1st Defendant, and did not comply with the consent order of 22nd June 2002 requiring payment of Kshs 200,000

Reasoning

The Plaintiff claimed through Stanley Gichuki Maitho and Thome Farmers No. 5 Ltd, but adduced no evidence that Thome Farmers No. 5 acquired title to the suit property or L.R. 13330 from the 1st Defendant. The 1st and 2nd Defendants produced evidence of their titles. The Plaintiff also admitted non-compliance with the consent order in HCCC 6206 of 1992, having paid only Kshs 40,000 of the Kshs 200,000 required. Ownership questions were reserved for full trial.

p. 4
02

Whether the Plaintiff met the requirements for a mandatory injunction

Holding

The mandatory injunction could not issue; no special circumstances over and above a prima facie case were shown, and the Plaintiff had not even established the prima facie case

Reasoning

Citing Kenya Breweries Ltd v Washington Okeyo, the court noted that a mandatory injunction requires special circumstances beyond a prima facie case and is granted only in clear cases. Since the Plaintiff failed at the threshold of establishing a prima facie case, the mandatory injunction could not issue.

p. 4

Legal principles established

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  • The requirements for a temporary injunction are establishment of a prima facie case and irreparable loss not compensable by damages; failing both, the court may decide on the balance of convenience (Giella vs Cassman Brown)
  • A mandatory injunction requires special circumstances over and above a prima facie case, and will issue only in clear cases where the matter ought to be decided at once (Kenya Breweries Ltd v Washington Okeyo)
  • In cases of double allocation, a party issued with a good title takes precedence over other equitable rights to the title (Dr. Joseph arap Ngok vs Justice Moijo ole Keiwa & 4 Others)

Court orders

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  1. 1.The Plaintiff's Amended Chamber Summons dated 12th February 2013 is denied
  2. 2.The costs of the Amended Chamber Summons shall be in the cause

Authorities

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Legislation

  • Registration of Titles Act (repealed)section 23

Cases cited (4)

  • Giella vs Cassman Brown & Co Ltd
    (1973) EA 358
  • Kenya Breweries Ltd and another v Washington Okeyo
    (2002) 1 E.A. 109
  • Dr. Joseph arap Ngok vs Justice Moijo ole Keiwa & 4 Others
    Nairobi CA No 60 of 1997
  • Joreth Ltd vs Lewis Kibue and Others (HCCC 6206 of 1992)
Jurisdiction invoked
Original civil jurisdiction of the High Court over land disputes (interlocutory application in a pending suit)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Christopher Wachira Githui v Joreth Limited & another [2014] KEELC 463 (KLR)", Case Analysis (2014). Not stated in judgment (relates to HCCC 6206 of 1992, Joreth Ltd vs Lewis Kibue and Others). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/463/eng@2014-03-04

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