Gladys Mumbi Irungu v David Gikaria & 2 others [2017] KEELC 776 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#What constitutes a valid preliminary objection
The 3rd defendant's Notice of Preliminary Objection and Grounds of Opposition did not disclose a pure point of law and was treated as grounds of opposition.
Guided by Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd, the court restated that a preliminary objection must be a pure point of law, precisely and clearly defined. On reading the 3rd defendant's filing, the judge was not persuaded it disclosed any pure point of law, and therefore declined to dispose of it first, treating it instead as grounds of opposition.
Whether the applicant established a prima facie case for an interlocutory injunction
No prima facie case was established; the application failed at the first Giella hurdle.
Although the applicant lawfully held a 6-year lease and had licences from the 3rd defendant, her accusations of threats to interfere were generalized: no dates, no identification of which defendant made the threats, no indication whether oral or written. She also withdrew the suit against the 2nd defendant without explanation. Such generalized allegations did not demonstrate a material and substantive invasion of a right requiring rebuttal.
Effect of the defendants' failure to file replying affidavits
Defences on record denying the allegations meant the absence of replying affidavits did not entitle the applicant to the injunction.
The court acknowledged the 1st and 3rd defendants filed no replying affidavits but noted their statements of defence denied the plaintiff's allegations. The burden remained on the applicant to present a case sufficient to call for an explanation or rebuttal. Generalized allegations, even uncontradicted by affidavit, do not suffice for interlocutory injunctive relief.
Legal principles established
#- A preliminary objection must be on a pure point of law, precisely, briefly and clearly defined; a pleading combining a preliminary objection with grounds of opposition that raises no pure point of law is treated as grounds of opposition.
- The three Giella conditions are separate, distinct and logical hurdles to be surmounted sequentially; if no prima facie case is established, irreparable injury and balance of convenience need no consideration.
- Generalized allegations, even if unanswered by a replying affidavit, are insufficient to establish a prima facie case; the applicant must show a material and substantive threat to a clear and unmistakable right.
Court orders
#- 1.Notice of Motion dated 17th March 2017 dismissed with costs
- 2.Costs to the defendants
- Jurisdiction invoked
- Order 40 rule 1(a) of the Civil Procedure Rules, among others
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ndope v The Executive Committee Member in Charge of Land & Urban Planning, Nairobi City County & 5 others (Environment & Land Petition E015 of 2025) [2025] KEELC 4959 (KLR)[2025] KEELC 4959 (KLR)2 Jul 2025
- Abraham Muthee M’ethaiba (Suing as legal representative of Ethaiba M’tuoroi (Deceased) v Land Adjudication Settlement Officer Igembe/ Tigania West & 20 others [2022] KEELC 999 (KLR)[2022] KEELC 999 (KLR)9 Mar 2022
Cite this brief
#Cite this brief
Caselaw, "Gladys Mumbi Irungu v David Gikaria & 2 others [2017] KEELC 776 (KLR)", Case Analysis (2017). Notice of Motion dated 17th March 2017 (suit filed at Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/776/eng@2017-11-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.