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ELCDismissedELC Case of 2017 (Thika) - suit filed 15th February 2017· [2017] KEELC 617 (KLR)

Antony Ndungu Maina v Faith Wanjiku Maina [2017] KEELC 617 (KLR)

Environment and Land Court
20 December 2017
2,077 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer who only has a sale agreement, no share certificate or proof of taking possession, lost his bid to stop construction on the plot he claims.

What this practically means

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Executive summary

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This is a ruling on the Plaintiff's Notice of Motion dated 15th February 2017 seeking an interlocutory injunction to restrain the Defendant from building, constructing, farming on, occupying or using LR.No.Ruiru Kiu/Block 4/458, Share Certificate No.1512, Mwihoko Housing Company Limited, pending determination of the main suit which also sought eviction, damages for trespass and mesne profits. The Plaintiff claimed he purchased the plot from Suzan Wanjiru Kimani by a sale agreement dated 16th February 2011 and was still obtaining a title deed. The Defendant opposed, averring she bought the plot from Joseph Gakahu Githi by agreement dated 4th July 2013, was issued a share certificate and clearance certificate by Mwihoko Housing Co. Ltd, and that the Company's letter of 28th February 2017 confirmed her as bona fide owner; she alleged the Plaintiff was perpetuating fraud. Applying the Giella v Cassman Brown criteria, the court found the Plaintiff had not established a prima facie case: apart from the sale agreement he had no share certificate, receipts or signed document linking him to the Company, and he never averred taking possession. The Defendant, by contrast, produced a sale agreement, a cancelled vendor share certificate, her own share certificate, a transfer payment receipt and a Company confirmation letter. The court also found no irreparable loss compensable only by damages, and did not reach the balance of convenience. The application was dismissed entirely with costs in the cause, and parties were directed to comply with Order 11 within 30 days and fix the main suit for pre-trial conference and expeditious hearing.

Key legal issues

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01

Prima facie case with probability of success

Holding

The Applicant failed to establish a prima facie case; the Respondent had better documentary connection to the suit property through a sale agreement, cancelled share certificate of her vendor, her own share certificate and payment receipt

Reasoning

The Applicant relied only on a sale agreement dated 16th February 2011 and did not aver taking possession; he produced no share certificate or receipts from Mwihoko Housing Co. Ltd, and an unsigned letter. The Respondent, by contrast, produced a sale agreement dated 4th July 2013, a cancelled share certificate of her vendor, her own share certificate dated 5th July 2013 and a Kshs.30,000 transfer receipt, plus a company letter of 28th February 2017 confirming her ownership.

p. 3
02

Irreparable loss not compensable by damages

Holding

Not established; failure to aver possession meant the Applicant could not claim irreparable loss

Reasoning

The Court linked the irreparable injury limb to possession: since the Applicant never averred that he took vacant possession after his purchase, he could not demonstrate harm that damages would not adequately compensate.

p. 4
03

Balance of convenience

Holding

Not reached, as the Court was not in doubt after failing the first two limbs

Reasoning

Having found no prima facie case and no irreparable loss, the Court held there was no doubt requiring resort to the third Giella criterion.

p. 4

Legal principles established

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  • Grant of an interlocutory injunction is a judicial discretion to be exercised judicially
  • A prima facie case is more than an arguable case and requires proof of an apparent infringement of a right calling for rebuttal
  • In an interlocutory application the court does not determine trial issues with finality but only whether the applicant meets the usual criteria

Court orders

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  1. 1.Dismissal of the Plaintiff's/Applicant's Notice of Motion dated 15th February 2017 entirely with costs being in the cause
  2. 2.Parties directed to prepare the matter for hearing by complying with Order 11 of the Civil Procedure Rules within 30 days
  3. 3.Matter to be fixed for Pre-trial Conference before the Deputy Registrar and thereafter for hearing of the main suit expeditiously

Authorities

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Legislation

  • Civil Procedure RulesOrder 11

Cases cited (4)

  • Hasmukh Khetshi Shah Vs Tinga Tranders Ltd
    Civil Appeal No.326 of 2002
  • Edwin Kamau Muniu Vs Barclays Bank of Kenya Ltd
    Nairobi HCCC No. 1118 of 2002
  • Giella Vs Cassman Brown & Co. Ltd
    1973, EA 358
  • Mrao Vs First American Bank of Kenya Ltd & Others
    (2003) KLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property LR.No.Ruiru Kiu/Block 4/458

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Antony Ndungu Maina v Faith Wanjiku Maina [2017] KEELC 617 (KLR)", Case Analysis (2017). ELC Case of 2017 (Thika) - suit filed 15th February 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/617/eng@2017-12-20

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