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ELCDismissedNot stated in judgment (Notice of Motion dated 5th November 2015)· [2017] KEELC 29 (KLR)

Mary Nyambura Muchiri v Mwangi Karia & another [2017] KEELC 29 (KLR)

Environment and Land Court
27 April 2017
MOM.C. Oundo
1,542 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner's bid to stop a church occupying her parcel failed because she couldn't show a strong enough case before full trial.

What this practically means

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Executive summary

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The plaintiff, Mary Nyambura Muchiri, moved the Environment and Land Court by Notice of Motion dated 5th November 2015 seeking an interlocutory injunction restraining the defendants, members and representatives of the Africa Independent Pentecostal Church of Africa, from entering, alienating, encroaching, trespassing on or fencing land parcel Nyandarua/Melangine/4618 pending the hearing of the suit. She asserted ownership of the parcel, on which she claimed the church had been built in 1985 despite her protests, and that the defendants had fenced off the land, obstructing her farming livelihood. Both parties appeared in person and gave oral submissions; no substantive documentary evidence was produced beyond a copy of the plaintiff's title deed and a map. The 2nd Respondent's representative contended the church stood on a distinct parcel (No. 54 Tumaini trading center) separated by a permanent boundary. Applying the settled principles in Giella v Cassman Brown, the court found the plaintiff had not established a prima facie case: the church's presence on the land since 1985 was undisputed, a permanent structure existed, and doubt persisted as to whether there were two distinct parcels, a matter for trial. The application was dismissed with costs to the respondents. The court also considered whether the defendants had authority under Chapter 9 of the Church Constitution to defend the suit; lacking evidence of authority, it declined to declare them non-suited and instead granted leave to the plaintiff to amend her plaint, with corresponding leave to the defendants to amend their defence.

Key legal issues

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01

Whether the plaintiff established a prima facie case for an interlocutory injunction

Holding

The plaintiff did not establish a prima facie case; doubt existed as to whether there were two distinct parcels of land, a matter for trial

Reasoning

Applying the Giella v Cassman Brown principles, the court found no substantive documentary evidence was produced by either party. The church had been on the land since 1985, which was not disputed, and had constructed a permanent structure. The plaintiff's title deed copy and map were insufficient to establish a prima facie case with a probability of success. The dispute over parcel boundaries required full trial.

p. 2
02

Whether the defendants had authority to defend the suit on behalf of the church under Chapter 9 of the Church Constitution

Holding

The court declined to declare the defendants non-suited despite absence of evidence of authority, and granted leave for mutual amendment of pleadings

Reasoning

No evidence was shown authorizing Pastor Joseph Muchiri or the 1st Defendant to defend the suit on behalf of the church under Chapter 9 of the Church Constitution. However, the court hesitated to declare them non-suited and instead granted the plaintiff leave to amend her plaint, with corresponding leave to the defendants to amend their defence.

p. 3

Legal principles established

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  • The conditions for the grant of an interlocutory injunction are: a prima facie case with probability of success; irreparable injury not adequately compensable by damages; and, if in doubt, the balance of convenience

Court orders

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  1. 1.Dismissal of the plaintiff's Notice of Motion dated 5th November 2015 seeking an interlocutory injunction
  2. 2.Costs of the application to the Respondents
  3. 3.Leave granted to the Plaintiff to amend her plaint
  4. 4.Corresponding leave granted to the defendant(s) to amend their defence

Authorities

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Cases cited (2)

  • Giella vs Cassman Brown
    [1973] EA 358
  • E.A. Industries v. Trufoods
    [1972] E.A. 420
Jurisdiction invoked
Environment and Land Court jurisdiction (suit concerning land parcel Nyandarua/Melangine/4618); specific statutory provision not cited in the judgment

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, "Mary Nyambura Muchiri v Mwangi Karia & another [2017] KEELC 29 (KLR)", Case Analysis (2017). Not stated in judgment (Notice of Motion dated 5th November 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/29/eng@2017-04-27

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