Presbyterian Foundation v Douglas Kihiko Waiyaki & 4 others [2017] KEELC 794 (KLR)
The bottom line
#A church foundation failed to win an injunction over school land in Nairobi because it could not prove it truly owned the property.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case with a probability of success
No - the plaintiff failed to prove ownership of the suit property; uncontroverted evidence showed the property was held in trust for Mama Ngina Primary School, a public school
The court found the defendants' documentary evidence - extracts of registers and official searches - uncontroverted. That evidence traced the suit property to Plot No. 512, acquired by Kiambu County Council for Mama Ngina Primary School, and transferred to the plaintiff as trustee. The plaintiff offered no explanation of how property held in trust for a public school came to be registered as trustee of a private school, which the court characterized as a fraudulent acquisition.
Whether the plaintiff would suffer irreparable harm not adequately compensable by damages
No - there was no evidence of interference with school activities nor of any threat of disposal, since the property remained registered in the plaintiff's name as trustee of Mama Ngina Primary School
The court observed that there was no evidence the defendants were interfering with learning activities on the suit property, and no threat of disposal existed because the register still showed the plaintiff as trustee of Mama Ngina Primary School following the Registrar's rectification under section 79(2) of the Land Registration Act, 2012. Damages would therefore suffice, and the balance of convenience did not need to be considered.
Legal principles established
#- An applicant for a temporary injunction must show a prima facie case with a probability of success and irreparable injury not adequately compensable by damages; if in doubt, the court decides on a balance of convenience
- Uncontroverted averments and documentary evidence placed before the court by an opponent may defeat an injunction application even at the interlocutory stage
Court orders
#- 1.The Notice of Motion dated 24th February, 2016 is dismissed with costs to the defendants
- Jurisdiction invoked
- Environment and Land Court jurisdiction over disputes concerning ownership of land (suit property Title No. Dagoretti/Kinoo/539)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Presbyterian Foundation v Douglas Kihiko Waiyaki & 4 others [2017] KEELC 794 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/794/eng@2017-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.