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ELCDismissedHigh Court Civil Case (Nairobi) - Notice of Motion dated 29th August 2013 in ELC Suit· [2015] KEELC 578 (KLR)

Concepter Nafula Wamalwa & another v Diana Kapeen Kibor [2015] KEELC 578 (KLR)

Environment and Land Court
20 March 2015
PNP. Nyamweya
1,323 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court refused to stop a county official from occupying disputed land because the family couldn't prove their allotment letter covered that exact property.

What this practically means

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Executive summary

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The Plaintiffs, administrators of the estate of Moses Matumbai, sought a temporary injunction restraining the Defendant, a Nairobi County representative, from possessing, occupying, constructing on or interfering with Plot No. P 5198 (also known as L.R No. 209/14494). They alleged that on 15th July 2013 the Defendant demolished their structures, placed a container on the plot and assaulted the 1st Plaintiff, and that they held a grant of letters of administration and an allotment letter dated 17th December 1998 in respect of the property. The Defendant denied any interest in acquiring the suit property, contending that it was vacant public land adjacent to a road, that the container was a temporary County Government office, and that the Plaintiffs had no proprietary rights enforceable over public land. The court, applying the Giella v Cassman Brown test, considered whether the Plaintiffs had established a prima facie case. It found that the letter of allotment referred to an unsurveyed commercial plot no 'F' in Nairobi South C, and that no plans, maps or other evidence connected that plot to the suit property claimed. Consequently, the Plaintiffs had not demonstrated an apparently infringed right, the first and decisive limb of the Giella test failed, and the application was dismissed with costs to be borne by the Plaintiffs. The judgment turned on the sufficiency of documentary proof linking an allotment to a specific surveyed parcel of land.

Key legal issues

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01

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

Holding

The Plaintiffs failed to establish a prima facie case because the letter of allotment they relied upon referred to an unsurveyed commercial plot and no plans, maps or other evidence connected it to the suit property

Reasoning

The court examined the documentary evidence annexed by the Plaintiffs. The letter of allotment dated 17th December 1998 referred to an unsurveyed commercial plot no 'F' in Nairobi South C. No plans, maps or other evidence linked that plot to Plot No. P 5198 or L.R No. 209/14494. Without proof that the allotted parcel is the suit property, no apparent infringement of a right was demonstrated, so the Giella threshold was not met and the application failed at the first limb.

p. 3

Legal principles established

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  • A prima facie case in a civil application is a case which, on the material presented, shows a right apparently infringed by the opposite party so as to call for an explanation or rebuttal
  • An applicant for a temporary injunction must establish a prima facie case and irreparable loss not compensable by damages; failing which the balance of convenience applies

Court orders

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  1. 1.The Plaintiffs' Notice of Motion dated 29th August 2013 is dismissed
  2. 2.The Plaintiffs shall meet the costs of the said Notice of Motion

Authorities

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Cases cited (3)

  • Giella vs Cassman Brown & Co Ltd
    (1973) EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Pashito Holdings & Another vs Ndungu & 2 Others
    KLR(E&L)1
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute concerning a parcel of land known as Plot No. P 5198 / L.R No. 209/14494

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, "Concepter Nafula Wamalwa & another v Diana Kapeen Kibor [2015] KEELC 578 (KLR)", Case Analysis (2015). High Court Civil Case (Nairobi) - Notice of Motion dated 29th August 2013 in ELC Suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/578/eng@2015-03-20

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