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ELCOtherNotice of Motion dated 8/2/17 (suit over LOC.12/SUB-LOC 1/1221/19, Murang'a ELC)· [2017] KEELC 1610 (KLR)

Ambrose Kimani Mwangi & 30 others v Stephen Irungu & another [2017] KEELC 1610 (KLR)

Environment and Land Court
28 September 2017
JKJ. G. Kemei
1,224 words in judgment
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The bottom line

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A Murang'a court refused to block sub-division or eviction of claimed family land because the occupants produced no proof of ownership or possession.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Murang'a (J. G. Kemei, J) determined a Notice of Motion dated 8 February 2017 in which the applicants, claiming occupation and use of suit property LOC.12/SUB-LOC 1/1221/19 at Gakira market since 1958, sought a temporary injunction to restrain the respondents from sub-dividing, alienating or evicting them pending the hearing of the suit. The respondents, who held a ½ share of the property by virtue of a grant dated 25 August 2010, opposed the application, arguing the applicants had not been in sole occupation, had a history of filing prior suits over the property (rendering the suit res judicata), and that the claim was time barred. The court framed one issue: whether the applicants were entitled to the interlocutory injunction. Applying the Giella v Cassman Brown test and the Mrao definition of a prima facie case, the court found that the applicants had tendered no evidence of ownership, possession since 1958, or rental income; the rent receipts bore varying names, and no basis for challenging the respondents' registered ½ share was demonstrated. Declining to grant the injunction, the court instead invoked Order 40 rule 1 of the Civil Procedure Rules and ordered preservation of the suit land by maintenance of status quo for 60 days, within which the parties were to fix the matter for hearing, failing which the orders would lapse. Costs were ordered to be in the cause.

Key legal issues

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01

Whether the applicants established a prima facie case with probability of success

Holding

No - no evidence of ownership, possession since 1958, or rental income was tendered

Reasoning

Although the applicants claimed occupation and development since 1958 and payment of ground rent, the receipts bore different names, and no evidence linked them to ownership or possession. The respondents held ½ share by grant of 25/8/10, and the applicants did not demonstrate any ground on which that ownership could be challenged. A prima facie case per Mrao requires an apparent infringement of a right, which was not shown.

p. 3

Legal principles established

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  • Conditions for an interlocutory injunction: prima facie case with probability of success, irreparable injury not compensable in damages, and balance of convenience

Court orders

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  1. 1.Status quo in terms of prayer (i) of the application for 60 days to preserve the suit land, failing which the orders lapse
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rule 1

Cases cited (2)

  • Giella v. Cassman Brown and Co. Ltd
    (1973) EA 358
  • Mrao Limited vs. First American Bank of Kenya Ltd and 2 others
    C.A No. 39 of 2002 (2003 eKLR)
Jurisdiction invoked
Order 40 rule 1 of the Civil Procedure Rules

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, "Ambrose Kimani Mwangi & 30 others v Stephen Irungu & another [2017] KEELC 1610 (KLR)", Case Analysis (2017). Notice of Motion dated 8/2/17 (suit over LOC.12/SUB-LOC 1/1221/19, Murang'a ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1610/eng@2017-09-28

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