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ELCDismissedNot stated in the excerpt (E&L suit, Nairobi)· [2016] KEELC 439 (KLR)

Saima Jepkemboi Ondimu v Principal Secretary, Ministry of Lands Housing & Urban Development & 2 others [2016] KEELC 439 (KLR)

Environment and Land Court
2 August 2016
SOS. Okong'o
2,606 words in judgment
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The bottom line

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A Nairobi court refused to stop the eviction of a civil servant from a Kileleshwa house because an earlier court had already decided she was not entitled to it.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (Okong'o J.) determined the Plaintiff's Notice of Motion dated 22nd May 2014 seeking an interlocutory injunction to restrain the Defendants from evicting her or interfering with her possession of House No. HG/580 A, Kileleshwa, pending trial. The Plaintiff, a former civil servant, claimed she had been allocated the government house and had applied to purchase it under the 1st Defendant's circulars of 2004, but her application and 10% deposit were rejected while the house was sold to the 3rd Defendant, also a civil servant. The 3rd Defendant claimed lawful ownership under the second circular and branded the Plaintiff a trespasser; the 1st and 2nd Defendants argued the suit was time barred and the injunction test unmet. The Court applied the Giella v Cassman Brown principles, as amplified in Mrao and Nguruman, and held the Plaintiff had no prima facie case. It found decisive the prior judgment of Majanja J. delivered on 14th February 2014 in Nairobi HC Misc. Application No. 648 of 2005 (Republic v Permanent Secretary, Ministry of Lands and Housing, Ex-parte Saima Jepkemboi Ondimu), which dismissed her judicial review application and held she had not complied with the terms of either circular while the 3rd Defendant had a binding contract and was entitled to possession. Those findings, made between substantially the same parties on the same material, were held binding and not open to be reopened by a court of concurrent jurisdiction. Irreparable injury and balance of convenience were not reached, the Court observing damages would suffice against the 1st and 2nd Defendants. The application was dismissed with costs to the Defendants. Directions were left to be taken on the 3rd Defendant's separate application dated 22nd April 2015.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

No prima facie case established; the Plaintiff lacked an apparent right over the suit property

Reasoning

The Plaintiff's entitlement to purchase the house had been rejected in a concluded judicial review application in which Majanja J. found she did not meet the terms of either circular, while the 3rd Defendant had complied and entered a binding contract. On the same material now presented, the Court could not find an apparently infringed right deserving protection.

p. 4
02

Preclusive effect of prior judicial review judgment

Holding

The reliefs sought in the suit were intended to achieve what the Plaintiff was denied in the judicial review application between substantially the same parties on the same material

Reasoning

The Court held it had no power to reopen issues already determined by Majanja J., the parties, issues and material being substantially the same. The earlier judgment concluded the Plaintiff was not entitled to the house and the 3rd Defendant's contractually accrued rights could not be deprived.

p. 4
03

Irreparable injury and balance of convenience

Holding

Not reached; obiter that damages would be an adequate remedy against the 1st and 2nd Defendants

Reasoning

Having failed on the first Giella ground, the Plaintiff's application fell away. The Court observed in any event that damages could compensate her if at trial she proved entitlement as against the 1st and 2nd Defendants.

p. 4

Legal principles established

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  • Findings of a coordinate court of concurrent jurisdiction on the same material bind the parties and cannot be overturned by this Court
  • An applicant for a temporary injunction must establish a prima facie case with probability of success, irreparable injury not compensable by damages, and if in doubt the balance of convenience
  • Where a plaintiff fails on the first Giella ground, the court need not consider irreparable injury or balance of convenience

Court orders

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  1. 1.The Notice of Motion dated 22nd May 2014 is dismissed
  2. 2.Costs of the application to the Defendants

Authorities

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Cases cited (3)

  • Giella vs. Cassman Brown and Co. Ltd.
    (1973) E.A 358
  • Mrao Limited vs. First American Bank Limited & 2 Others
    (2003) KLR 125
  • Nguruman Limited vs. Jan Bonde Nielsen
    No. 77 of 2012
Jurisdiction invoked
Concurrent jurisdiction of the Environment and Land Court with the High Court (Art. 162(2) framework implied); not expressly cited in the excerpt

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, "Saima Jepkemboi Ondimu v Principal Secretary, Ministry of Lands Housing & Urban Development & 2 others [2016] KEELC 439 (KLR)", Case Analysis (2016). Not stated in the excerpt (E&L suit, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/439/eng@2016-08-02

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