Mary Mabuti Magondu & another v Ann Grace Wairimu & another [2017] KEELC 532 (KLR)
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
#Key legal issues
#Whether the plaintiffs established a prima facie case
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
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.
Balance of convenience and possession pending trial
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
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.
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.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.Costs shall be in the cause
- 3.Parties to comply with pre-trial directions so the case is heard and determined within twelve months
- 4.Matter to be mentioned on 27th November 2017 on the question of possible transfer to the subordinate court
- 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.