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ELCAllowedCase No 135 of 2017· [2017] KEELC 484 (KLR)

Fame Wambui Mbugua v Francis Macharia [2017] KEELC 484 (KLR)

Environment and Land Court of Kenya (inferred from land dispute; judgment does not name the court)
8 December 2017
DOD. O. Ohungo
714 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This interlocutory ruling by D. O. Ohungo J at Nakuru, delivered on 8 December 2017, determines the plaintiff's Notice of Motion dated 24 March 2017 brought under Order 40 rules 1, 2, 3, 4 and 5 of the Civil Procedure Rules, 2010, seeking an injunction to restrain the defendant from interfering with her quiet possession, occupation and use of Commercial Plot No. 45, Githioro Trading Centre pending the hearing and determination of the main suit. The plaintiff deposed that she purchased the plot from Miriam Gathoni Kimani on 27 December 2012, that Miriam had been allotted it by the County Government of Nakuru, that the County acknowledged the transfer by issuing an allotment letter dated 20 March 2013, and that she had been paying rates. She accused the defendant of entering the land in September 2015, laying claim to it and digging a pit latrine. The application proceeded unopposed, the defendant having been served but neither appearing nor responding. Applying Giella v Cassman Brown as elaborated in Nguruman Limited v Jan Bonde Nielsen, the court found the unchallenged evidence established a prima facie case with a probability of success and that damages would not adequately compensate the applicant. The court granted the injunction restraining the defendant, his agents, servants and/or employees from interfering with the plaintiff's possession, occupation or use of the suit property pending trial, and awarded the plaintiff the costs of the application.

Key legal issues

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01

Whether the applicant established a prima facie case with a probability of success for an interlocutory injunction

Holding

Yes - the unchallenged evidence of allotment, transfer and payment of rates established a prima facie case, and damages would not adequately compensate.

Reasoning

The court applied the Giella v Cassman Brown test as elaborated in Nguruman Limited v Jan Bonde Nielsen. The applicant produced a transfer dated 27 December 2012, an allotment letter dated 20 March 2013 and rates payment receipts, none of which was challenged since the application proceeded unopposed. The defendant had entered the land in September 2015 and begun digging a pit latrine. On that evidence the court was satisfied the applicant was allocated the property and had a prima facie case, and that damages would be inadequate given the land's nature.

p. 2

Legal principles established

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  • The three Giella conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant must surmount sequentially; if no prima facie case is established, irreparable injury and balance of convenience need no consideration.

Court orders

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  1. 1.An injunction restraining the defendant, his agents, servants and/or employees from interfering in any manner with the plaintiff's quiet possession, occupation or use of land known as Commercial Plot No. 45, Githioro Trading Centre pending the hearing and determination of the suit
  2. 2.Costs of the application to the plaintiff

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 rules 1, 2, 3, 4 and 5

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
Order 40 rules 1, 2, 3, 4 and 5 of the Civil Procedure Rules, 2010

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, "Fame Wambui Mbugua v Francis Macharia [2017] KEELC 484 (KLR)", Case Analysis (2017). Case No 135 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/484/eng@2017-12-08

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