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ELCPartially AllowedNot stated in judgment (Notice of Motion dated 21st September 2017)· [2017] KEELC 446 (KLR)

Benson Kibochi Ng’ang’a v Clement V. Gachuhi Kabaya [2017] KEELC 446 (KLR)

Environment and Land Court
15 December 2017
DOD. O. Ohungo
789 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court protected a landowner from interference but refused to evict the other party before the case was fully heard.

What this practically means

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Executive summary

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The plaintiff moved the court by Notice of Motion dated 21st September 2017 under Order 40 Rule 1 of the Civil Procedure Rules, seeking a temporary injunction restraining the defendant from interfering with his ownership and peaceful use of unsurveyed Commercial Plots Nos. B 53 and B 54 – Githioro Trading Centre, and further seeking the defendant's eviction pending the hearing and determination of the suit. The plaintiff deposed that he purchased Plot B 53 in October 2012 from Zipporah Wanjiru Maina and Plot B 54 on 16th December 2013 from Jackline Nduta Mwangi, both of whom had been allocated the plots by the County Council of Nakuru, and that he had been paying rates to the County Government of Nakuru. He alleged that the defendant had moved onto the land and begun erecting a fence and a temporary structure. Although the defendant filed a Notice of Appointment of Advocate, no response to the application was filed and counsel did not attend the inter partes hearing; the application therefore proceeded unopposed. Applying the Giella v Cassman Brown test as restated in Nguruman Limited v Jan Bonde Nielsen, the court found the plaintiff's unchallenged evidence of ownership established a prima facie case with a probability of success, and that damages would not adequately compensate for loss of land. The injunction was granted, but the eviction order was refused because it would conclude the case at the interlocutory stage. Costs were awarded to the plaintiff. Judgment delivered at Nakuru on 15th December 2017 by D. O. Ohungo J.

Key legal issues

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01

Whether the plaintiff met the Giella test for an interlocutory injunction

Holding

The plaintiff established a prima facie case with a probability of success, damages would not adequately compensate for loss of land, and he was entitled to a restraining order

Reasoning

The plaintiff's unchallenged evidence showed ownership of the two suit plots, supported by allotment letters, sale agreements and rates payment receipts. The defendant filed no response and did not attend the inter partes hearing, so the allegations of interference were uncontroverted. Damages cannot adequately compensate for loss of land. The court applied the Giella test sequentially as confirmed in Nguruman Limited v Jan Bonde Nielsen.

p. 2
02

Whether an eviction order could issue at the interlocutory stage

Holding

Eviction was refused because it would determine the suit at the interlocutory stage

Reasoning

The court distinguished between restraining interference and evicting the defendant. Granting eviction before the hearing and determination of the suit would in effect grant the substantive relief sought in the main suit and pre-empt the outcome of the trial.

p. 2

Legal principles established

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  • The three Giella conditions are to be applied sequentially as separate, distinct and logical hurdles; if no prima facie case is established, irreparable injury and balance of convenience need not be considered

Court orders

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  1. 1.An injunction restraining the Defendant/Respondent by himself, agents, servants, and/or anyone claiming through him from interfering with the plaintiff's ownership and peaceful use of land parcel number UNS. COMMERCIAL PLOTS NO. B 53 AND B 54 – GITHIORO TRADING CENTRE pending the hearing and determination of this suit
  2. 2.Costs to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (2)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land; application brought under Order 40 Rule 1 of the Civil Procedure Rules

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, "Benson Kibochi Ng’ang’a v Clement V. Gachuhi Kabaya [2017] KEELC 446 (KLR)", Case Analysis (2017). Not stated in judgment (Notice of Motion dated 21st September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/446/eng@2017-12-15

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