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ELCAllowedNot stated in the judgment· [2017] KEELC 1277 (KLR)

Wanyororo Farmer Company Ltd v Board of Governers - St Joseph’s Kirima Secondary School & 2 others [2017] KEELC 1277 (KLR)

Environment and Land Court
24 October 2017
DOD. O. Ohungo
772 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buying company won a court order stopping anyone from dealing with its disputed Nakuru plot until the main case is heard.

What this practically means

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Executive summary

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The plaintiff, a limited liability company operating as a land buying company, moved the court by Notice of Motion dated 19th September 2016 under Order 40 rules 1, 2 and 3 of the Civil Procedure Rules, 2010, seeking an interlocutory injunction restraining the defendants from interfering or dealing with parcel SOLAI NDUNGIRI BLOCK 3/725 (WANYORORO 'B'), plus costs. In an affidavit sworn by its secretary, Eliud Ndungu Thuo, the plaintiff explained that the plot, initially allocated to a coffee factory, was irregularly registered in 1992 in the name of the County Council of Nakuru as trustee for St. Joseph's Kirima Secondary School; following the Council's disowning of the registration, the title reverted to the plaintiff on 23rd March 2009. In 2014, the 1st defendant was registered as owner under mysterious circumstances, with the Principal Secretary, Ministry of Education distancing the Ministry from the registration. The plaintiff intended to use the land as a market, having subdivided and allocated it to members. The defendants were served but filed no response and did not attend; the application proceeded unopposed. Applying the Giella v Cassman Brown principles as reiterated in Nguruman Limited v Jan Bonde Nielsen, the court found the plaintiff had established a prima facie case with a probability of success and that damages would not adequately compensate it, particularly given the unchallenged evidence. By judgment delivered at Nakuru on 24th October 2017, D. O. Ohungo J granted the injunction pending the hearing and determination of the suit and awarded costs to the plaintiff.

Key legal issues

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Whether an interlocutory injunction should issue against the defendants restraining interference with the suit property

Holding

Yes. The plaintiff established a prima facie case with a probability of success and damages would not adequately compensate it.

Reasoning

The plaintiff was registered proprietor from March 2009 until the ownership changed in unclear circumstances to the Permanent Secretary, Ministry of Education in trust for St. Joseph's Kirima Secondary School, a change the Ministry disowned. The defendants filed no response and did not attend, so the plaintiff's evidence was unchallenged. The court applied the Giella v Cassman Brown test, as reiterated in Nguruman Limited v Jan Bonde Nielsen, and concluded the plaintiff had met the prima facie case threshold and that damages would not be adequate compensation.

p. 2

Legal principles established

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  • In an application for an interlocutory injunction, the applicant must establish a prima facie case with a probability of success, that damages would be inadequate, and if in doubt the court determines the matter on a balance of convenience.

Court orders

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  1. 1.Pending the hearing and determination of this suit, the defendants and/or their agents are hereby restrained from interfering or dealing in any way with the parcel of land known as SOLAI NDUNGIRI BLOCK 3/725 (WANYORORO “B”).
  2. 2.Costs to the plaintiff.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 rules 1, 2 and 3

Cases cited (2)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited –vs- Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Order 40 rules 1, 2 and 3 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, "Wanyororo Farmer Company Ltd v Board of Governers - St Joseph’s Kirima Secondary School & 2 others [2017] KEELC 1277 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1277/eng@2017-10-24

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