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ELCAllowed· [2014] KEELC 570 (KLR)

Kenya African National Union v Patrick Gitau Mbugua & 2 others [2014] KEELC 570 (KLR)

High Court of Kenya
20 June 2014
MGMary M. Gitumbi
981 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court blocked defendants from interfering with a Kasarani plot, confirming that land is unique and money cannot always replace it.

What this practically means

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Executive summary

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This is a ruling by the High Court (Nairobi) on a Notice of Motion dated 14th February 2014 in which the Plaintiff, a political party, sought a temporary injunction restraining the Defendants from trespassing onto, interfering with, or dealing with Plot No. 29082 Kasarani pending the hearing and determination of the application and the suit. The Plaintiff, through its Secretary General Nicholas Kiptoo Arap Salat, averred that it was allocated the suit property by the Government of Kenya on 14th May 1999, paid the stand premium, facilitated survey, and had since been in possession, paying annual rent and rates to the Nairobi City County and letting out structures to tenants. From around September 2013 the Defendants were said to be trespassing, impersonating Plaintiff officials to collect rent from tenants, threatening eviction, and promising to return with the proscribed Mungiki sect. The 1st Defendant, Patrick Gitau Mbugua, in his replying affidavit denied collecting rent by impersonation, denied ever living on or trespassing onto the suit property, and described himself as a stranger to the property and to the proceedings. Applying the Giella v Cassman Brown conditions and the Mrao definition of a prima facie case, the court found that the Plaintiff's Letter of Allotment, against the Defendants' complete denial of any claim to the property, established a prima facie case with a probability of success. Damages were held inadequate because land is unique. Not being in doubt, the court declined to consider the balance of convenience. The application was allowed with costs to the Plaintiff.

Key legal issues

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01

Whether a prima facie case with probability of success was established

Holding

Yes - the Plaintiff relied on a Letter of Allotment dated 14th May 1999 while the Defendants laid no claim to the property at all

Reasoning

The Plaintiff founded its ownership claim on a Letter of Allotment issued by the Department of Lands and produced in support of the application. The Defendants, through the 1st Defendant's replying affidavit, denied any dealings with, trespass on, or claim over the suit property. Where the party resisting the injunction asserts no competing interest, the applicant's documented right is enough to show a genuine and arguable case warranting protection pending trial.

p. 2
02

Adequacy of damages

Holding

Damages are inadequate because land is unique

Reasoning

Applying the second Giella condition, the court reasoned that land cannot be equated in value to another parcel. Although the value of the suit property could be ascertained, the court held that compensation in damages would not be an appropriate remedy where the plaintiff has established a clear legal right or breach, following the approach in JM Gichanga v Co-operative Bank of Kenya Ltd.

p. 2
03

Balance of convenience

Holding

Not necessary to consider, since the court was not in doubt after the first two limbs

Reasoning

Having found a prima facie case and inadequacy of damages, the court was not in doubt and therefore saw no reason to determine in whose favour the balance of convenience tilted. The third Giella condition applies only where the court remains in doubt.

p. 2

Legal principles established

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  • Land is unique and damages are not always a suitable remedy where a plaintiff has established a clear legal right or breach
  • Definition of a prima facie case for interlocutory relief

Court orders

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  1. 1.Application allowed with costs to the Plaintiff/Applicant (interlocutory injunction restraining the Defendants from trespassing onto, interfering with or dealing with Plot No. 29082 Kasarani pending hearing and determination of the suit)

Authorities

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Cases cited (3)

  • GIELLA versus CASSMAN BROWN
    (1973) EA 358
  • MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    (2003) KLR 125
  • JM GICHANGA versus CO-OPERATIVE BANK OF KENYA LTD
    (2005) eKLR
Jurisdiction invoked
Original civil jurisdiction of the High Court (injunctive relief over land); no specific constitutional/statutory provision invoked in the judgment

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, "Kenya African National Union v Patrick Gitau Mbugua & 2 others [2014] KEELC 570 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/570/eng@2014-06-20

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