Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (Notice of Motion dated 3rd April 2017)· [2017] KEELC 341 (KLR)

Mary Muthoni Kinyanjui v Nyakinyua Investment Ltd & another [2017] KEELC 341 (KLR)

Environment and Land Court (Court not expressly named; delivered at Thika)
8 December 2017
LGL. GACHERU
1,553 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to protect a claimant's plot because she had no documents proving she owned it.

What this practically means

#

Executive summary

#
This is a ruling on the Plaintiff/Applicant's Notice of Motion dated 3rd April 2017, brought under Order 40 Rule 2, Order 51 Rule 3 and Section 3A of the Civil Procedure Act, seeking temporary injunctions restraining the 1st Defendant, Nyakinyua Investment Limited, and the 2nd Defendant from interfering with Plot No.3975 in Nyakinyua Investment Limited pending trial. The Applicant averred that she inherited the plot from her mother, Wairimu Kanyingi, a member of the 1st Defendant, and that the 1st Defendant had illegally transferred it to the 2nd Defendant. The 1st Defendant, in a Replying Affidavit sworn by Nduta Ndirangu Chege, contended that the Applicant annexed no documents proving entitlement, that the company's records showed the Applicant owned LR No. Ruiru/Mugutha Block 1/3976 which she transferred to one Jennifer Muthoni Kimani, and that it was not transferring the property to the 2nd Defendant, who is unknown to it. The 2nd Defendant did not enter appearance. Applying the Giella v Cassman Brown test, L. GACHERU J found that the Applicant failed to establish a prima facie case: the receipts exhibited did not identify plot No.3975 and no share certificate, register extract, title deed or evidence of transfer was produced. The court further held that damages would adequately compensate the Applicant as the plot is quantifiable, and declined to decide on the balance of convenience. The application was dismissed entirely with costs in the cause, and the parties were directed to prepare the suit for hearing within 45 days and take a pre-trial conference date before the Deputy Registrar. Delivered at Thika on 8th December 2017.

Key legal issues

#
01

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

Holding

She did not; no documentary proof of ownership of Plot No.3975 was exhibited

Reasoning

The receipts exhibited did not identify plot No.3975; no share certificate, register extract or title deed in the name of the Applicant or her mother was annexed, and there was no evidence of any transfer to the 2nd Defendant. Without evidence of ownership the court could not find an infringement of a right, so the first Giella limb failed.

p. 3
02

Whether damages would be an adequate remedy

Holding

Yes; the plot is quantifiable and compensable in damages

Reasoning

Applying Wairimu Mureithi v City Council of Nairobi, the court found that even if the plot had been transferred, it could be quantified and the Applicant adequately compensated by an award of damages, so the second limb of the Giella test was not satisfied and no injunction should issue.

p. 3

Legal principles established

#
  • The granting of an interim injunction is an exercise of judicial discretion which must be exercised judicially
  • In an application for injunction, the court should not delve into substantive issues and make final conclusions on affidavit evidence
  • The Giella test: prima facie case, irreparable injury not compensable by damages, and balance of convenience
  • No injunction should be granted where damages would be an adequate remedy

Court orders

#
  1. 1.The Notice of Motion application dated 3rd April 2017 is dismissed entirely with costs being in the cause
  2. 2.The parties are directed to prepare the suit for hearing within the next 45 days from the date hereof and thereafter take a date for Pre-trial Conference before the Deputy Registrar

Authorities

#

Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 40 Rule 2
  • Civil Procedure RulesOrder 51 Rule 3

Cases cited (7)

  • Hasmukh Khetshi Shah vs Tinga Tranders Ltd
    Civil Appeal No.326 of 2002
  • Agip (K) Ltd vs Maheshchandra Himatlal Vora & 2 Others
    Civil Appeal No.213 of 1999
  • Giella vs Cassman Brown Co. Ltd
    1973 EA 358
  • Kibutiri vs Kenya Shell
    Nairobi HCCC No.3398 of 1980 (1981) KLR 390
  • E.A Industries vs Trufoods
    (1972) EA 420
  • Mrao Ltd vs First American Bank of Kenya Ltd & Others
    (2003) KLR 123
  • Wairimu Mureithi vs City Council of Nairobi
    Civil Appeal No.5 of 1979 (1981) KLR 322
Jurisdiction invoked
Order 40 Rule 2, Order 51 Rule 3 and Section 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mary Muthoni Kinyanjui v Nyakinyua Investment Ltd & another [2017] KEELC 341 (KLR)", Case Analysis (2017). Not stated in the judgment (Notice of Motion dated 3rd April 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/341/eng@2017-12-08

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