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ELCPartially AllowedNotice of Motion dated 29th May 2013 (suit number not stated in judgment)· [2015] KEELC 726 (KLR)

Stephen Mbuthia Kienjeku v Simon Macharia Nduhiu & another [2015] KEELC 726 (KLR)

High Court of Kenya
20 February 2015
MGMary M. Gitumbi
1,285 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi buyer of Embakasi Ranching plots won court protection from interference, but must still prove full ownership at trial.

What this practically means

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Executive summary

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This is a ruling on the Plaintiff's Notice of Motion dated 29th May 2013 seeking an interlocutory injunction against the 1st and 2nd Defendants from trespassing, disposing of, or interfering with Plot Nos. H324, H324B and H325 Embakasi Ranching, Ruai, and a declaration that the Plaintiff is the owner of those plots. The Plaintiff purchased the plots from the 1st Defendant for Kshs. 1,800,000/- under a sale agreement dated 13th December 2011 and took possession, but transfer was never effected. The 1st Defendant admitted receiving the funds and signing a surrender of his interest, though he maintained the plots sold were substitute plots numbered 5244, 5345, 5334 and 5335 following nullification of the original plots; he did not oppose the application. The 2nd Defendant filed no response. Applying the Giella v Cassman Brown conditions and the Mrao definition of a prima facie case, the court found the Plaintiff had demonstrated a genuine and arguable case with high chances of success based on the sale agreement and the 1st Defendant's admission. Relying on Niaz Mohamed Jan Mohamed and Jaj Super Power, the court held damages would not adequately compensate for interference with land. The balance of convenience was not considered necessary. The court allowed prayer 2 (injunction), declined prayer 3 (declaration of ownership), which must await full trial, and ordered costs in the cause.

Key legal issues

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01

Prima facie case

Holding

Plaintiff demonstrated a prima facie case based on the sale agreement and the 1st Defendant's admission of sale

Reasoning

The court applied the Giella test and the Mrao definition of a prima facie case. Relying on the sale agreement and the 1st Respondent's admission of having received funds and surrendered his interest, the court found a genuine and arguable case with high chances of success, leaving the identity of the exact plots to trial.

p. 2
02

Adequacy of damages

Holding

Damages would not adequately compensate the Plaintiff for interference with land rights

Reasoning

The court relied on Niaz Mohamed Jan Mohamed and Jaj Super Power Cash and Carry Ltd to hold that land disputes involving trespass cannot adequately be remedied by damages; a wrongdoer cannot keep what he has taken because he can pay for it.

p. 3
03

Declaration of ownership at interlocutory stage

Holding

Refused; a final declaration of ownership cannot issue on a motion

Reasoning

Prayer 3 sought a final determination of ownership. The court held that such a declaration must await the full trial since the exact plots which are the subject matter of the suit remained contested and reserved for trial.

p. 2

Legal principles established

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  • Conditions for grant of interlocutory injunction: prima facie case, irreparable injury not compensable in damages, and balance of convenience
  • Trespass is not compensable in damages; the trespasser must give way pending determination

Court orders

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  1. 1.Interlocutory injunction restraining the 1st and 2nd Defendants, their agents, employees and/or servants from trespassing, disposing and interfering with Plot Nos. H324, H324B and H325 Embakasi Ranching, Ruai pending hearing and determination of the application and suit (prayer no. 2)
  2. 2.Costs in the cause

Authorities

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Cases cited (4)

  • GIELLA versus CASSMAN BROWN
    (1973) EA 358
  • MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    (2003) KLR 125
  • Niaz Mohamed Jan Mohamed versus The Commissioner of Lands
    (1996) eKLR
  • Jaj Super Power Cash and Carry Ltd versus Nairobi City Council and 2 Others
    Civil Appeal Number 111 of 2002 (unreported)
Jurisdiction invoked
Original civil jurisdiction; interlocutory application under civil procedure (no specific provision stated)

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, "Stephen Mbuthia Kienjeku v Simon Macharia Nduhiu & another [2015] KEELC 726 (KLR)", Case Analysis (2015). Notice of Motion dated 29th May 2013 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/726/eng@2015-02-20

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