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ELCDismissedNotice of Motion dated 10th November, 2015· [2017] KEELC 1789 (KLR)

Francis Mbugua Kamau & another v Saikimba Ole Lekishapui [2017] KEELC 1789 (KLR)

Environment and Land Court (as constituted at Kajiado)
25 September 2017
COCHRISTINE OCHIENG
1,418 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Plaintiffs, sons and administrators of the estate of the late Kamau Njoroge, moved the court by Notice of Motion dated 10th November 2015 under Order 40 of the Civil Procedure Rules seeking an interlocutory injunction against Saikima Ole Lekishapui. They claimed their father purchased 9.6 acres (parcel LTK/KIMANA-TIKONDO/584) hived off the Defendant's parcel LTK/KIMANA-TIKONDO/46 in 1974, obtained Land Control Board consent in 1977, took possession and farmed the land until the Defendant evicted them, demolished their house, and began selling the land to third parties, colluding with land officers to make subdivision records disappear. The Defendant denied any sale, asserting he only granted the deceased two acres to farm and rented him furrow water, that a 1980 Tribunal ruling in his favour was affirmed by the Kajiado court, that a caution lodged by John Kioi Kamau was removed in Miscellaneous Civil Suit No. 23 of 2015, and that the land was subdivided among his family and sold to third parties with titles issued on 19th January 2016. Applying the Giella v Cassman Brown principles, the court found no prima facie case: the Plaintiffs produced no sale agreement, no certified survey documents (with unexplained date discrepancies), no green card extract and no LCB consent, and the parent title no longer existed, making injunctive orders futile. The application was disallowed with costs in the cause.

Key legal issues

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01

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

Holding

No prima facie case was established; the Plaintiffs produced no sale agreement, no certified survey documents, no green card extract and no Land Control Board consent, and the parent title no longer exists having been subdivided and sold to third parties

Reasoning

The Plaintiffs claimed their father bought 9.6 acres in 1974 but furnished no sale agreement. The Boundary Certificate bore inconsistent dates (1977 and 1979) versus the Mutation form (1977), unexplained and uncertified by the Director of Survey. The alleged LCB consent was never annexed. The land was already subdivided, titles issued to third parties on 19th January 2016, and the Plaintiffs were out of possession, rendering injunctive relief futile. The Court also noted unexplained delay and prior Tribunal proceedings adopted by the court.

p. 3

Legal principles established

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  • An applicant for an interlocutory injunction must demonstrate a prima facie case with probability of success, irreparable injury not compensable in damages, and failing which the balance of convenience decides.

Court orders

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  1. 1.The Plaintiffs' application dated 10th November, 2015 is disallowed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rules 1, 2 and 3
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Act, Cap 21Sections 1A, 1B and 3A

Cases cited (1)

  • Giella vs. Cassman Brown & Co. Ltd
    (1973) E.A 358
Jurisdiction invoked
Order 40 Rules 1, 2 and 3 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21

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, "Francis Mbugua Kamau & another v Saikimba Ole Lekishapui [2017] KEELC 1789 (KLR)", Case Analysis (2017). Notice of Motion dated 10th November, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1789/eng@2017-09-25

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