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ELCOtherNot stated in the judgment· [2017] KEELC 826 (KLR)

John Gathua Thuku v James Ndiritu Kariamburi & another [2017] KEELC 826 (KLR)

Environment and Land Court
30 October 2017
LWL N Waithaka
950 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nyeri land buyer already living on purchased property won protection through a status quo order instead of an injunction, blocking his eviction before trial.

What this practically means

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Executive summary

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This was a Notice of Motion dated 2nd November 2016 by the plaintiff, John Gathua Thuku, seeking a temporary injunction restraining the defendants from alienating, entering or interfering with his possession of 43.9 acres excised from LR No. 25103/2 Kamatongu, Nyeri, pending the hearing of the suit, plus a police compliance order. The plaintiff deponed that he purchased the land in October 2013 for Kshs.13,960,000 from the 1st defendant through the 2nd defendant as attorney, paid the full price, took possession and made developments awaiting transfer documents. He complained that the 1st defendant in 2016 leased the suit property to a third party. The 1st defendant opposed, denying the power of attorney and sale agreement, arguing the sale was null and void for want of Land Control Board consent, and that as administrator of the estate of Alexander Kariamburi Kagumba (deceased) he lacked capacity, the property still being registered in the deceased's name; he described the plaintiff as a trespasser and intermeddler. The 2nd defendant did not respond. Applying Giella v Cassman Brown, the court found common ground that the plaintiff is in possession and occupation and that refusal of orders would result in his eviction. Declining to grant the injunction, the court invoked its inherent powers under Sections 1A, 1B and 3A of the Civil Procedure Act and ordered that status quo be maintained pending the hearing and determination of the suit. Costs were ordered to be in the cause.

Key legal issues

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01

Whether the plaintiff established the Giella v Cassman Brown criteria for a temporary injunction

Holding

The court found the plaintiff in possession and occupation of the suit property (admitted by the 1st defendant who called him a trespasser), and rather than grant the injunction, exercised inherent powers to preserve the status quo pending trial.

Reasoning

The court applied the Giella principles, noting common ground that the suit property is registered in the name of the deceased, the 1st respondent is an administrator, and the applicant purchased 43.9 acres through the 2nd respondent's power of attorney and is in occupation. Denying orders would result in the applicant's eviction. Given the court's reluctance to evict parties at the interlocutory stage, it invoked inherent powers and ordered maintenance of status quo instead of a formal injunction.

p. 2

Legal principles established

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  • The purpose of an injunction at the interlocutory stage is to maintain the status quo, and courts should not evict parties in occupation at the interlocutory stage.

Court orders

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  1. 1.Status quo to be maintained pending the hearing and determination of the suit, invoking the inherent powers under Sections 1A, 1B and 3A of the Civil Procedure Act
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A, 1A, 1B
  • Civil Procedure Rules, 2010Order 40 Rule 1; Order 51 Rule 1

Cases cited (3)

  • Giella vs Cassman Brown
    (1973) E.A 358
  • EA Industries vs Trufoods
    [1972] EA 420
  • Esso (K) Ltd V. Mark Makwata Okiya
    Civil Appeal No. 69 of 1991
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Gathua Thuku v James Ndiritu Kariamburi & another [2017] KEELC 826 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/826/eng@2017-10-30

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