Samuel Njoroge Gachacha & another v John Matega Gachacha & another [2017] KEELC 411 (KLR)
The bottom line
#The Environment and Land Court in Nakuru refused to freeze or restrict land the plaintiffs claimed a deceased relative could not have validly sold, because they lacked a strong enough case.
What this practically means
#Executive summary
#Key legal issues
#Preliminary objections based on limitation
The preliminary objections were dismissed because they were founded on affidavit evidence rather than a pure point of law
The objections relied on the contents of the defendants' replying affidavits regarding the dates of registration. A preliminary objection must be a pure point of law argued on the assumption that the pleaded facts are correct, and cannot be raised where facts must be ascertained or proven. Since the objections could only succeed if the affidavit evidence were accepted as proven, they did not disclose a pure point of law.
Prima facie case for interlocutory injunction
The plaintiffs failed to establish a prima facie case; the injunction applications failed
Applying Giella and Nguruman, the applicants had to establish a prima facie case with a probability of success as the first sequential hurdle. The defendants were registered proprietors entitled to the rights under sections 24 and 25 of the Land Registration Act. The plaintiffs' claim that the deceased lacked capacity was doubtful since he swore a detailed affidavit in 2008, and claims of criminal conduct were unsupported by any complaints or investigations. Whether the deceased could convey the properties was a matter for trial.
Mandatory injunctions sought as discovery
The mandatory injunctions were refused because they sought discovery which is governed by adequate rule-based procedures
A reading of the prayers showed the orders were in substance discovery orders. The rules provide ample mechanisms for discovery at the appropriate stage, and a mandatory injunction should not be used against a fellow litigant to achieve what those procedures already provide.
Inhibitions
The prayers for inhibition failed because no prima facie case was established and inhibitions would curtail registered proprietors' rights
An inhibition curtails a registered proprietor's right to deal with property. Having found no prima facie case, the court saw no reason to fetter the registered proprietors through inhibitions.
Legal principles established
#- A preliminary objection must be a pure point of law and cannot succeed where it is founded on facts contained in affidavits that would need to be proven
- The three Giella conditions are separate, distinct and sequential hurdles which an applicant for an injunction must surmount
- A litigant may not use a mandatory injunction as a substitute for the discovery procedures available under the rules
Court orders
#- 1.All the Notices of Motion dated 15th December 2016 filed in ELC No. 557 of 2016 to ELC No. 574 of 2016 are dismissed
- 2.Costs of the applications awarded to the defendants
- 3.The orders made in ELC No. 561 of 2016 apply in ELC No. 557 of 2016 to ELC No. 574 of 2016
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over suits relating to title to land; applications brought under Section 68(1) of the Land Registration Act and Order 40 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Njoroge Gachacha & another v John Matega Gachacha & another [2017] KEELC 411 (KLR)", Case Analysis (2017). ELC No. 561 of 2016 (with ELC No. 557-560 of 2016 and ELC No. 562-574 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/411/eng@2017-12-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.