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ELCOtherNot stated in judgment (interlocutory Notice of Motion dated 14th March 2014; reference to related ELC No. 638 of 2013)· [2015] KEELC 778 (KLR)

Joseph Gatubi Kariuki v Kikuyu Sub County & another [2015] KEELC 778 (KLR)

Environment and Land Court
5 February 2015
JMJ. M. Mutungi
2,008 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Nairobi land court declined to grant either side a decisive win over a disputed Kiambu plot, freezing the situation until a full trial settles ownership.

What this practically means

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Executive summary

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The Plaintiff moved the court by Notice of Motion dated 14th March 2014 under sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 40 Rule 10(1)(a) and Order 51 Rule 1 of the Civil Procedure Rules, seeking a temporary injunction to restrain the Respondents from trespassing on, or interfering with his occupation of, plot no. 29 (originally 25A) Kikuyu Kidfarmaco in Kiambu County. The Plaintiff claimed he purchased the plot in 1998, obtained change of ownership approvals and paid rates and building approval fees, until the 2nd Respondent fenced it off in May 2013 and the 1st Respondent renumbered the plot. The 2nd Respondent denied that plot 25A existed, having been revoked by Council minutes of 2nd June 1999, and asserted his own 2011 purchase of plot 29, also questioning the suit as parallel litigation to ELC No. 638 of 2013. The 1st Respondent filed no response despite service. The court framed one issue: whether the Plaintiff met the Giella v Cassman Brown conditions for an interlocutory injunction. It found competing Committee approvals for both parties' plots, no evidence of notice to owners of revoked plots, and silence from the 1st Respondent. Rather than grant the injunction, the court, applying Shivabhai Patel v Manibhai Patel on the duty to preserve property in issue, maintained the status quo with the Plaintiff in occupation, barred further construction pending trial, directed Order 11 compliance and a pre-trial conference within 60 days, and ordered costs in the cause.

Key legal issues

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Whether the Plaintiff established a prima facie case, irreparable harm and balance of convenience warranting a temporary injunction

Holding

The court did not grant the injunction but found the suit property ought to be preserved pending full trial, maintaining the Plaintiff's occupation as status quo while barring further construction

Reasoning

Both parties traced approvals of their respective plots from the Works, Planning and Markets Committee of the Town Council of Kikuyu on varying dates, and there was no evidence that owners of revoked plots were notified of the revocations. The 1st Respondent, successor to the Council, filed no response to clarify. The competing claims to plot 25A and plot 29 could only be resolved at a full trial, and the property should be preserved in the interim.

p. 3

Legal principles established

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  • The court has a clear duty to preserve property which may be in issue in litigation

Court orders

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  1. 1.Existing status quo maintained with the Plaintiff in occupation of the suit property
  2. 2.Plaintiff restrained from effecting any further constructions until the suit is determined
  3. 3.Parties to comply with Order 11 of the Civil Procedure Rules and fix the matter for pre-trial conference within 60 days
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A, 63(e)
  • Civil Procedure RulesOrder 40 Rule 10(1)(a)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 11

Cases cited (2)

  • Giella -vs- Cassman Brown
    (1973) EA 358
  • Shivabhai Patel -vs- Manibhai Patel
    (1959) EA 107
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 40 Rule 10(1)(a) and Order 51 Rule 1 of the Civil Procedure Rules

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, "Joseph Gatubi Kariuki v Kikuyu Sub County & another [2015] KEELC 778 (KLR)", Case Analysis (2015). Not stated in judgment (interlocutory Notice of Motion dated 14th March 2014; reference to related ELC No. 638 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/778/eng@2015-02-05

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