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ELCDismissedNotice of motion dated 20th June, 2017 (suit number not stated in judgment)· [2017] KEELC 853 (KLR)

Titus Kagunu Mundia v Joseph Muthee Mundia & another [2017] KEELC 853 (KLR)

Environment and Land Court
2 November 2017
LWL N Waithaka
588 words in judgment
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The bottom line

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A Kenyan landowner lost his injunction because he claimed an interest in land without producing any evidence to prove it.

What this practically means

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Executive summary

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The plaintiff/applicant moved the court by notice of motion dated 20th June, 2017 seeking a prohibitory/inhibitory order against Plots No. 12 and 13 Kamuyu Village within Nyeri town, restraining the defendant/respondent, their agents, employees, surveyors and assigns from any action detrimental to the outcome of the suit, with a prayer that the OCS Nyeri Police Station facilitate adherence to the orders, plus costs. The application was supported by the applicant's affidavit sworn on 19th June, 2017, in which he deponed that he was a beneficiary of the plots originally owned by his father, which he alleged had been irregularly obtained by the respondents and registered in their names as allottees. The application was unopposed; a process server deponed that the respondents were personally served on 27th July, 2017 and 23rd October, 2017 but declined to sign. The court, applying the Giella v Cassman Brown conditions, held that despite being unopposed the applicant had to prove his asserted beneficial interest under Section 107 of the Evidence Act. Finding no evidence of such interest, the court held he failed to establish a prima facie case with a probability of success and dismissed the application with no order as to costs, since the application was not defended. Judgment was delivered at Nyeri on 2nd November, 2017 by L N Waithaka, J.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success for a temporary injunction

Holding

The application was dismissed because the applicant produced no evidence of his alleged beneficial interest and therefore failed the first Giella condition

Reasoning

The court applied the Giella v Cassman Brown conditions for temporary injunctions. Although the application was unopposed, the plaintiff deponed only to being a beneficiary of the plots without documentary or other evidence. Under Section 107 of the Evidence Act, the burden lay on him to prove the facts he asserted. Having failed to discharge that burden, his allegations remained mere assertions and no prima facie case was established.

p. 2

Legal principles established

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  • An applicant bears the burden of proving the facts asserted, including beneficial interest in land, under Section 107 of the Evidence Act
  • An unopposed application must still satisfy the substantive requirements for the relief sought

Court orders

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  1. 1.The application is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Evidence ActSection 107

Cases cited (1)

  • Giella vs Cassman Brown
    (1973) E.A. 358
Jurisdiction invoked
Not stated in the judgment

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, "Titus Kagunu Mundia v Joseph Muthee Mundia & another [2017] KEELC 853 (KLR)", Case Analysis (2017). Notice of motion dated 20th June, 2017 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/853/eng@2017-11-02

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