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ELCDismissed· [2015] KEELC 799 (KLR)

Mumbi Kamau v Margaret Waithira Wambui (Environment & Land Case 1263 of 2014) [2015] KEELC 799 (KLR)

Environment and Land Court
19 June 2015
MGMARY M. GITUMBI
1,300 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who proved ownership still lost her injunction bid because all three Giella conditions must be met, not just some.

What this practically means

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Executive summary

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The Plaintiff, Mumbi Kamau, applied by Notice of Motion dated 26th September 2014 for a temporary injunction restraining the Defendant, Margaret Waithira Wambui - her daughter-in-law and widow of her late son John Kiarie Kamau - from trespassing on, selling, transferring or interfering with Plot No. 139/614 pending the hearing of the application and suit. The Plaintiff asserted she was the registered proprietor, holding Share Certificate No. 1662 issued by Mararui Farmers Company Ltd in 1989, and that the Defendant was a mere licensee whose permission to reside had been abused. The Defendant admitted the Plaintiff's ownership but contended she had lived on the property since 1990 with her late husband, that the deceased had been promised transfer of the property and had paid survey fees, and that the suit aimed to evict her without regard to her and her son's interests. Applying Giella v Cassman Brown, the court found the Plaintiff had a prima facie case since ownership was undisputed, and held that damages would not adequately compensate her as land is unique. However, because the Defendant had resided on the property since 1990 with permission, granting the injunction would effectively evict her at the interlocutory stage before a full trial. The balance of convenience therefore favoured the Defendant. All three Giella conditions not being satisfied, the application was dismissed with costs in the cause.

Key legal issues

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01

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

Holding

Yes - ownership of the suit property was undisputed, the Defendant having admitted the Plaintiff's title

Reasoning

The court applied the Mrao definition of a prima facie case. The Defendant conceded that the suit property belongs to the Plaintiff and confirmed she came to live there in 1990 as the wife of the deceased with the Plaintiff's permission. With ownership common cause, the court found the Plaintiff had established ownership rights and hence a prima facie case with high chances of success at trial.

p. 2
02

Whether damages would adequately compensate the Plaintiff

Holding

No - land is unique and cannot be equated in value to another parcel or compensated in damages

Reasoning

The court, relying on JM Gichanga v Co-operative Bank of Kenya Ltd, reasoned that although the value of the suit property could be ascertained, land is unique and no one parcel can be equated in value to another. Damages are not always a suitable remedy where a plaintiff has established a clear legal right or breach, so this limb also favoured the Plaintiff.

p. 2
03

In whose favour the balance of convenience tilts

Holding

The balance of convenience tilts in favour of the Defendant

Reasoning

The Defendant has lived on the suit property from 1990 with the Plaintiff's permission, a fact not disputed. Granting the injunction at the interlocutory stage would have the practical effect of evicting her before a full trial, condemning her unheard. This limb failed for the Plaintiff, and because all three Giella conditions must be satisfied, the application was dismissed.

p. 3

Legal principles established

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  • The conditions for granting an interlocutory injunction are a prima facie case with a probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience
  • Damages are not always a suitable remedy where the plaintiff has established a clear legal right or breach, land being unique

Court orders

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  1. 1.The Plaintiff/Applicant's Notice of Motion dated 26th September 2014 seeking a temporary injunction is dismissed
  2. 2.Costs shall be in the cause

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 over land disputes (interlocutory application in a land suit)

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, "Mumbi Kamau v Margaret Waithira Wambui (Environment & Land Case 1263 of 2014) [2015] KEELC 799 (KLR)", Case Analysis (2015). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/799/eng@2015-06-19

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