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ELCDismissedNot stated in the judgment (application dated 21st June 2017)· [2017] KEELC 1283 (KLR)

Charles Murithi Njoka v Morris Muthomi Eustace & another [2017] KEELC 1283 (KLR)

Environment and Land Court
30 October 2017
PNP.M. Njoroge
2,457 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Chuka dismissed a landowner's injunction bid because he never rebutted forgery allegations, so unchallenged claims were treated as true.

What this practically means

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Executive summary

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The plaintiff, Charles Murithi Njoka, applied by notice of motion dated 21st June 2017 for an order of inhibition and temporary injunction restraining the defendants from selling, trespassing on or interfering with Plot No. C17 'A' CHUKA/JOMBAS. He claimed to be the bonafide owner and alleged that the 1st defendant fraudulently caused the developed plot to be transferred to himself instead of Plot No. M66, the plot actually sold under an agreement of 24th November 2010; he further relied on a subsequent refund and retransfer agreement and on monthly remittances, and alleged that the 1st defendant had clandestinely sold the plot to the 2nd defendant, who had invaded it. The 1st defendant, Morris Muthomi Eustace, opposed through a replying affidavit sworn 12th July 2017, asserting he was the registered owner who lawfully purchased the plot, that the transfer was approved by the Municipal Council of Chuka's Town Planning Committee on 17th May 2011, and that the plaintiff's refund agreement and demand letter were forgeries — the agreement bearing an ID number belonging to one Kanini Munyao of Machakos County, and the demand letter disowned by the named advocate. He also listed nine fraud-related criminal cases against the plaintiff. In oral testimony the plaintiff maintained he sold Plot No. M66 and that the council erroneously transferred the wrong plot. The court held the applicant had not proved entitlement to injunctive orders, had not controverted the forgery claims, and that the serious unchallenged allegations weighed against him. The application was dismissed, the ex parte inhibition order of 27th June 2017 was set aside and vacated, costs were left in the cause, and Order 11 compliance and directions dates were given.

Key legal issues

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01

Whether the plaintiff established a prima facie case warranting a temporary injunction and inhibition

Holding

The application failed because the plaintiff did not disprove the respondents' allegations of forgery of key documents relied upon, and serious uncontroverted assertions weighed against him

Reasoning

The court considered the pleadings and submissions and found the applicant had not proved entitlement to injunctive orders. The plaintiff made no attempt to deny the claims that two documents relied upon were forged — the agreement bearing a wrong ID number and the demand letter allegedly issued by a non-existent firm. Serious allegations about the plaintiff's character also went unchallenged. On that state of the record the application was found to be without merit and dismissed, with the ex parte inhibition order set aside.

p. 5

Legal principles established

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  • An applicant for injunctive relief must controvert the serious allegations raised in a replying affidavit; uncontroverted assertions are taken as true

Court orders

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  1. 1.The application dated 21st June 2017 is dismissed
  2. 2.The order of inhibition against Plot No. C17 'A' CHUKA/JOMBAS granted ex parte on 27.6.2017 is set aside and vacated
  3. 3.Costs shall be in the cause
  4. 4.The plaintiff to fully comply with Order 11, CPR within 14 days of 30.10.2017; the defendants to comply with Orders 7 and 11, CPR within 14 days of receipt of the plaintiff's compliance documents, or immediately after lapse of the period granted to the plaintiff should he fail to comply
  5. 5.Parties to come to court for directions on 5th December 2017
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court over land disputes (civil procedure; not expressly 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, "Charles Murithi Njoka v Morris Muthomi Eustace & another [2017] KEELC 1283 (KLR)", Case Analysis (2017). Not stated in the judgment (application dated 21st June 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1283/eng@2017-10-30

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