Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the extract (2nd Defendant's Notice of Motion dated 5/12/2016 in the main suit)· [2017] KEELC 767 (KLR)

Benson Maina Gathithi Mugi & 11 others v John S. Njire Maina & another [2017] KEELC 767 (KLR)

Environment and Land Court
23 November 2017
JKJ. G. Kemei
992 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court refused to protect claimants over a disputed plot because they produced no documents proving their ownership claim.

What this practically means

#

Executive summary

#
This is a ruling on the 2nd Defendant's (KANU's) notice of motion dated 5 December 2016 seeking interim and pending-trial injunctions restraining the 1st Defendant/Respondent from trespassing on, alienating, leasing or otherwise interfering with Plot No. 1193/0082, also known as Plot No. 1193/82 Mukuyu Market or Plot No. Loc.II/Maragi/1193/82, and from destabilising the tenancy over it. The application was supported by the affidavit of Benson Maina Gathithi Mugi on grounds that the Respondent had illegally and mysteriously had the suit property transferred to himself and intended to alienate it. The 1st Respondent opposed through grounds of opposition and a replying affidavit, asserting that the plot was allocated to KANU in 1994 and sold to him by KANU's national office on 13 September 2016 for valuable consideration, with approval from the Murang'a County Government and recognition by the KANU Kiharu Branch, which directed the tenant, Simon Macharia Kairu, to pay rent to him. The 2nd Defendant filed no response. Applying Giella v Cassman Brown as explained in Mrao v First American Bank, J.G. Kemei J held that the Applicants, who claimed ownership as KANU Kiharu branch delegates since the 1970s, had attached no documents proving their membership or any ownership right in the property, and correspondence allegedly from them acknowledging the sale was a matter for trial. The first limb failing, the court declined to consider irreparable harm or balance of convenience, and dismissed the application with costs to the 1st Respondent/Defendant.

Key legal issues

#
01

Whether the Applicants established a prima facie case for an interlocutory injunction

Holding

They did not; no documentation was attached to vouch for their ownership or membership rights in the suit property

Reasoning

The Applicants claimed to be KANU Kiharu branch delegates who owned the plot since the 1970s and collected rent from it. However, they attached no documentation proving they were delegates or members, and no documents vouching for any ownership right in the suit property. Correspondence allegedly from the Applicants themselves acknowledging the sale to the Respondent created contention best left to the trial court. The first Giella limb therefore failed and the court declined to consider the other two limbs.

p. 3
02

Locus standi of the Applicants to institute the suit and application

Holding

The court declined to determine locus at the interlocutory stage, reserving it for the trial court

Reasoning

The 1st Defendant argued in grounds of opposition that the Plaintiffs had no legal capacity or authority to file the suit or application. The court noted that KANU head office was itself the 2nd Defendant, making the locus question delicate, and expressly deferred it to the trial court rather than determining it on the application.

p. 3

Legal principles established

#
  • An applicant for an interlocutory injunction must show a prima facie case with a probability of success, irreparable injury not compensable by damages, and, if in doubt, the court decides on a balance of convenience
  • A prima facie case is one which, on the material presented, shows an apparently infringed right calling for an explanation or rebuttal from the opposite party

Court orders

#
  1. 1.The application dated 5/12/2016 is dismissed
  2. 2.Costs of the application awarded to the 1st Respondent/Defendant
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to grant interlocutory injunctions pending trial (Giella v Cassman Brown criteria applied)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Benson Maina Gathithi Mugi & 11 others v John S. Njire Maina & another [2017] KEELC 767 (KLR)", Case Analysis (2017). Not stated in the extract (2nd Defendant's Notice of Motion dated 5/12/2016 in the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/767/eng@2017-11-23

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