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ELCPartially Allowednot stated in the ruling· [2016] KEELC 18 (KLR)

Joseph Ndolo Muendo v Wanjiku Kinyoro & another [2017] [2016] KEELC 18 (KLR)

Environment and Land Court
2 December 2016
LGL. GACHERU
940 words in judgment
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The bottom line

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A Kenyan land court refused a full injunction over a disputed plot but froze both competing parcels, preserving the position of each side until trial.

What this practically means

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Executive summary

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This interlocutory ruling by the Environment and Land Court (Gacheru J) determined a Notice of Motion dated 18th March 2015 in which the Plaintiff sought to restrain the Defendants from wasting, destroying, alienating, selling, altering, transferring or interfering with Plot No. 1131 in LR 8469/9 pending the hearing and determination of the suit. The Plaintiff claimed he had purchased the plot from Thomas Mongare Ombonyo under a sale agreement and held a Certificate of Ownership issued by the 2nd Defendant, and that between 3rd and 8th March 2015 the Defendants entered the plot, demolished everything thereon and commenced constructing a wall. Thomas Mongare Obonyo supported the Plaintiff's case, confirming he was the original allottee who sold to the Plaintiff. The 1st Defendant, acting under a general power of attorney for her sister Sophia Wanjiru Mukuria, asserted title to Plot No. 54 within LR 8469/4 through purchase in 1991 and denied trespass. The court applied the Giella v Cassman Brown principles. It found both parties were second owners of plots sub-divided from LR 8469/9, each with a sale agreement and plot certificate, and identified a genuine factual dispute as to whether Plot No. 54 and Plot No. 1131 occupy the same physical location. Since the 2nd Defendant did not respond and contested issues of fact are best resolved at trial, the court declined the injunction but ordered preservation of both properties: a status quo order restraining both parties from disposing of, developing or alienating Plots No. 1131 and No. 54 pending determination of the suit. Costs were made costs in the cause. The ruling was delivered on 2nd December 2016 in the absence of the advocates for all parties.

Key legal issues

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Whether the Plaintiff established a prima facie case with probability of success and entitlement to a temporary injunction

Holding

The court declined to grant the injunction because there is a disputed question of fact as to whether Plot No. 54 and Plot No. 1131 are the same physical location, but preserved both plots by a status quo order pending trial

Reasoning

Both parties claimed under purchase from original allottees of sub-divisions of LR 8469/9 belonging to the 2nd Defendant, each holding a plot certificate. The Plaintiff alleged encroachment; the 1st Defendant denied it and disclaimed any claim to Plot No. 1131. The 2nd Defendant, the original owner, did not respond, though its representations could have shed light on the physical location of the plots. Contested issues of fact should be resolved at trial, so preservation rather than an injunction was the appropriate interim measure.

p. 2

Legal principles established

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  • The three-part Giella v Cassman Brown test governs the grant of temporary injunctions: prima facie case with probability of success; irreparable loss not adequately compensable by damages; and, if in doubt, balance of convenience
  • Where there are contested issues of fact, the matter is best determined after examination of evidence at trial; interim justice may be served by preserving the property

Court orders

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  1. 1.Status quo order to the effect that the Plaintiff and the 1st Defendant shall not dispose, carry out developments, or in any way alienate Plots No. 1131 and No. 54 respectively, pending the hearing and determination of the suit or until further orders of the court
  2. 2.Costs of the application to be in the cause

Authorities

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Cases cited (1)

  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
Jurisdiction invoked
Inherent powers of the court to grant interlocutory relief pending determination of the suit (not expressly stated in the ruling)

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 Ndolo Muendo v Wanjiku Kinyoro & another [2017] [2016] KEELC 18 (KLR)", Case Analysis (2016). not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/18/eng@2016-12-02

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