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ELCDismissedNot stated in judgment· [2017] KEELC 1447 (KLR)

John Kamakia Nthatu v Festus Kithinji Njagi [2017] KEELC 1447 (KLR)

Environment and Land Court
18 October 2017
PNP. M. Njoroge
1,143 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost his bid for a temporary injunction because parts of his own sworn statement turned out to be untrue.

What this practically means

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Executive summary

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The plaintiff, John Kamakia Nthatu, registered proprietor of land parcel No. THARAKA NITHI/GATUNGA/2271, moved the court by notice of motion dated 28th September 2017 seeking interim injunctions restraining the defendant, Festus Kithinji Njagi, from entering, constructing, cultivating, trespassing on, selling or otherwise dealing with the suit land pending the hearing and determination of the suit. The plaintiff asserted long occupation and use of the land, and alleged that on or about 19th August 2017 the defendant entered the land, commenced construction, created an unauthorized access road, destroyed his fence, crops and trees, interfered with boundaries, and was conspiring to fraudulently transfer the land to himself. The defendant, in his replying affidavit sworn on 17th October 2017, denied any trespass, contended that the only existing road was a public access road, that structures on his own parcel were erected in 2012, that the boundaries were intact, and that the plaintiff had obtained the ex parte orders through misrepresentation and concealment of material facts. When the application was heard inter partes on 18th October 2017, the plaintiff disowned paragraphs 4 and 7 of his own supporting affidavit. The court held that an application predicated upon false evidence establishes no basis for the grant of interim orders, vacated the existing interim orders, and dismissed the application. The court directed expeditious hearing of the suit, ordered both parties to comply with Order 11 of the Civil Procedure Rules within 14 days, fixed directions for 21st November 2017, and ordered that costs shall be in the cause.

Key legal issues

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01

Whether a temporary injunction should issue where the applicant's own supporting affidavit is shown to contain false or disavowed material

Holding

The application was dismissed and existing interim orders vacated because the applicant disowned part of his own affidavit

Reasoning

At the inter partes hearing the applicant disowned paragraphs 4 and 7 of his supporting affidavit, which alleged trespass, construction and boundary interference by the defendant. The court reasoned that an application founded on false evidence cannot sustain interim relief. The respondent also asserted that the exparte orders had been obtained through misrepresentation and concealment of material facts. The court therefore found the application invited dismissal and vacated the interim orders.

p. 3

Legal principles established

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  • An application predicated upon false evidence establishes no basis for the grant of interim orders

Court orders

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  1. 1.Existing interim orders vacated
  2. 2.Application dismissed
  3. 3.Suit to be heard expeditiously
  4. 4.Plaintiff ordered to fully comply with Order 11, CPR within 14 days
  5. 5.Defendant ordered to fully comply with Order 11, CPR within 14 days after receipt of the plaintiff's compliance documents
  6. 6.Parties to come back to court for directions on 21.11.2017
  7. 7.Costs shall be in the cause
Jurisdiction invoked
Not stated in 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, "John Kamakia Nthatu v Festus Kithinji Njagi [2017] KEELC 1447 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1447/eng@2017-10-18

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