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ELCPartially AllowedELC No. 544 of 2016 (Nakuru) consolidated with ELC No. 21 of 2017· [2017] KEELC 358 (KLR)

Elisha Chebii Chesinya v Domiziano Kaburu Njeru [2017] KEELC 358 (KLR)

Environment and Land Court
5 December 2017
DOD. O. Ohungo
1,380 words in judgment
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The bottom line

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A Nakuru court dismissed both sides' emergency requests over a disputed land sale but froze the property until the case is decided.

What this practically means

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Executive summary

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Two competing injunction applications arising from a sale agreement of 1st April 2013 under which Njeru agreed to sell 15 acres of plot No. 33 Olongai Scheme to Chesinya for KShs. 27,000,000 were consolidated and heard by way of written submissions. Chesinya, who sued first (ELC No. 544 of 2016, Nakuru), claimed he paid the full purchase price and sought to restrain Njeru from interfering with the land. Njeru filed his own suit (ELC No. 21 of 2017) and application, contending Chesinya paid only KShs. 11,000,000 and that the agreement was nullified for want of Land Control Board consent. Applying the Giella test as clarified in Nguruman, the court held that a prima facie case is more than an arguable case and that neither party had tendered sufficient evidence: Chesinya produced no proof of full payment, while the sale agreement placed the duty to apply for the Land Control Board consent on Njeru himself, so his nullity argument failed to assist him. Both Notice of Motion dated 5th December 2016 and Notice of Motion dated 19th December 2016 were dismissed, with the other Giella limbs not reached. To preserve the subject matter pending trial, the court ordered maintenance of the status quo over the 15 acres and restrained both parties from subdividing, selling, transferring, leasing or otherwise disposing of the property. Costs were granted in the cause. The judgment was delivered by D. O. Ohungo, J, in Nakuru on 5th December 2017.

Key legal issues

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01

Whether either party established a prima facie case for an interlocutory injunction

Holding

Neither party established a prima facie case with a probability of success; both applications dismissed and the other Giella limbs were not considered

Reasoning

The court applied the Giella test and the Nguruman clarification that the conditions are sequential hurdles. Chesinya gave no evidence of paying the full purchase price, while Njeru's own agreement placed the duty to obtain Land Control Board consent on him. The affidavit evidence was scanty; more than arguable issues were needed to show an infringement of a right.

p. 3
02

Whether the suit property should be preserved pending trial

Holding

The status quo was maintained and both parties restrained from disposing of the property, as a preservation measure despite the dismissal of both injunction applications

Reasoning

Having dismissed both injunction applications, the court nonetheless found it necessary to preserve the suit property pending determination of the consolidated suits, ordering maintenance of the status quo and barring any subdivision, sale, transfer, lease or other disposition by either party.

p. 3

Legal principles established

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  • All three Giella conditions are separate, distinct and logical hurdles to be surmounted sequentially; if no prima facie case is established, the other limbs need no consideration
  • A prima facie case is more than an arguable case; the evidence must show an infringement of a right and probability of success upon trial

Court orders

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  1. 1.Notice of Motion dated 5th December 2016 dismissed
  2. 2.Notice of Motion dated 19th December 2016 dismissed
  3. 3.Status quo in respect of the 15 acres of plot No. 33 Olongai scheme to be maintained pending hearing and determination of the consolidated suits
  4. 4.No party to subdivide, sell, transfer, lease or make any disposition in respect of the property until the suit is heard and determined
  5. 5.Costs in the cause
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (ELC suits No. 544 of 2016 and No. 21 of 2017)

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, "Elisha Chebii Chesinya v Domiziano Kaburu Njeru [2017] KEELC 358 (KLR)", Case Analysis (2017). ELC No. 544 of 2016 (Nakuru) consolidated with ELC No. 21 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/358/eng@2017-12-05

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