Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNotice of Motion dated 30th November 2016 in a suit filed on 30th November 2016 (suit number not stated in judgment)· [2017] KEELC 532 (KLR)

Mary Mabuti Magondu & another v Ann Grace Wairimu & another [2017] KEELC 532 (KLR)

Environment and Land Court
24 November 2017
1,318 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court blocked an eviction until trial, holding that a person already living on land should not be removed while the case is pending.

What this practically means

#

Executive summary

#
The plaintiffs moved the court by Notice of Motion dated 30th November 2016 seeking a temporary injunction restraining the 1st defendant from evicting them, transferring, building on or interfering with the suit property, LOCKUP TMP/267/76 RWAMBITI, pending trial. The plaintiffs, daughters of the 2nd defendant, asserted that the 1st plaintiff had lived on the property for over 30 years and that the property had been transferred to the 1st defendant, who had issued a notice to vacate. The 2nd defendant, aged 81 and denying senility, deponed that she sold the property to the 1st defendant with the plaintiffs' knowledge and holds other land. The 1st defendant confirmed the May 2016 purchase, her possession (operating a hotel), and argued the plaintiffs occupy only a small rear structure and that she cannot be injuncted from her own property. Applying Giella v Cassman Brown, and the definitions of a prima facie case in Mrao and Nguruman, Olao J expressed doubt about the first two principles: the plaint pleaded no trust or other interest of the plaintiffs in a property conceded to have belonged to and been transferred by the 2nd defendant, so the plaintiffs may be mere licensees. The court therefore determined the application on the balance of convenience. Noting the concession that the 1st plaintiff occupies a small structure and the notice to vacate, and citing George Orago, the court held that where an applicant is in possession and threatened with eviction, denial of an injunction would dispossess her. Allowing the motion, the court issued a temporary injunction restraining the 1st defendant as sought pending determination of the suit, ordered costs in the cause, directed pre-trial compliance for disposal within twelve months, and indicated an intention to consider transferring the suit to the subordinate court, with mention on 27th November 2017.

Key legal issues

#
01

Whether the plaintiffs established a prima facie case

Holding

The court was in doubt; the plaint disclosed no pleaded trust or other proprietary interest in the suit property beyond long occupation, so the plaintiffs may be mere licensees

Reasoning

The court could not understand the basis of the plaintiffs' claim. It was conceded the suit property belonged to the 2nd defendant who transferred it to the 1st defendant. The plaint pleaded only that the 1st plaintiff had lived on the property for over 30 years with nowhere else to call home, without pleading a trust or any other interest, so the first Giella principle was not clearly satisfied.

p. 2
02

Balance of convenience and possession pending trial

Holding

The court determined the application on the balance of convenience; the 1st plaintiff is in occupation and threatened with eviction, so a temporary injunction was warranted to preserve the suit property pending trial

Reasoning

Being in doubt on the first two Giella principles, the court turned to the balance of convenience. It found the 1st plaintiff in occupation of at least part of the property, as conceded in the 1st defendant's affidavit and evidenced by the notice to vacate. Denying the injunction would dispossess the applicant, and the route carrying the lower risk of injustice favoured preserving the status quo.

p. 2

Legal principles established

#
  • Where the applicant for an injunction is in possession and threatened with eviction, the court will grant a temporary injunction since denial would dispossess the applicant
  • A prima facie case is one where, on the material presented, the court concludes a right has apparently been infringed calling for an explanation or rebuttal
  • In assessing a prima facie case the court must not conduct a mini-trial or closely examine the merits

Court orders

#
  1. 1.An order of temporary injunction restraining the 1st defendant from evicting, transferring to any other party, building or in any way interfering with LOCKUP TMP/267/76 RWAMBITI pending the hearing and determination of the suit
  2. 2.Costs shall be in the cause
  3. 3.Parties to comply with pre-trial directions so the case is heard and determined within twelve months
  4. 4.Matter to be mentioned on 27th November 2017 on the question of possible transfer to the subordinate court

Authorities

#

Cases cited (5)

  • GIELLA VS CASSMAN BROWN & CO. LTD
    1973 E.A 358
  • MRAO VS FIRST AMERICAN BANK OF KENYA LTD & TWO OTHERS
    C.A Civil Appeal No. 39 of 2002 (2003 eKLR)
  • NGURUMAN LTD VS JAN BONDE NIELSEN & OTHERS
    C.A Civil Appeal No. 77 of 2012
  • FILMS ROVER INTERNATIONAL VS CANNON FILM SALE LTD
    1986 3 All E.R 772
  • GEORGE ORAGO VS GEORGE JAGALO & OTHERS
    C.A Civil Appeal No. 62 of 2009 (2010 eKLR)
Jurisdiction invoked
not stated in the judgment (Environment and Land Court; court notes the suit may fall within subordinate court jurisdiction)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mary Mabuti Magondu & another v Ann Grace Wairimu & another [2017] KEELC 532 (KLR)", Case Analysis (2017). Notice of Motion dated 30th November 2016 in a suit filed on 30th November 2016 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/532/eng@2017-11-24

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