Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2017] KEELC 1790 (KLR)

Michael Karita Muiru& another v Embakasi Ranching Company Ltd & another [2017] KEELC 1790 (KLR)

High Court of Kenya (inferred; judgment does not expressly name the court)
1 September 2017
MGMARY M. GITUMBI
1,463 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to freeze the sale of an Embakasi plot because the buyers' own paperwork did not clearly show what they owned.

What this practically means

#

Executive summary

#
The Plaintiffs, father and son, moved the court by Notice of Motion dated 19th September 2012 seeking a temporary injunction restraining the Defendants from selling or otherwise interfering with Plot No. P6049, Embakasi, pending the hearing and determination of the suit. The 1st Plaintiff deposed that the 2nd Plaintiff, his son, purchased the suit plot in 2008 from Rahab Wangui Thiongo and was issued a Non-Member Certificate of Plot Ownership by the 1st Defendant, took possession, but that the 1st Defendant later sought to sub-divide the plot, and on 12th December 2012 the 2nd Defendant invaded it and began depositing building materials. The 2nd Defendant, Teresia Njeri, opposed the application, asserting she purchased Plot No. P6105 in 1992, held a certificate dated 2000, and that the 1st Defendant had ruled the disputed land be sub-divided between the parties. The court, applying Giella v Cassman Brown and Mrao v First American Bank, held that on the affidavit material it could not ascertain which plot was in dispute or who owned which plot, as the parties claimed different plot numbers and the Plaintiffs' material was internally inconsistent; the 1st Defendant filed no response. The Plaintiffs therefore failed to establish a prima facie case with a probability of success. Relying on Kenya Commercial Finance Co. Ltd v Afraha Education Society and Nguruman Ltd v Jan Bonde Nielsen, the court held the Giella conditions sequential and declined to consider irreparable injury or balance of convenience. The application was dismissed with costs in the cause.

Key legal issues

#
01

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

Holding

They did not. The Plaintiffs claimed Plot No. P6049 while the 2nd Defendant claimed Plot No. P6105; on the material before the court it was not possible to ascertain which plot was in dispute or who owned which plot, and that question was reserved for the main trial.

Reasoning

The 1st Plaintiff annexed a Non-Member Certificate of Plot Ownership dated 3rd April 2009 in respect of Plot P6049 in the 2nd Plaintiff's name, yet elsewhere claimed ownership himself. The 2nd Defendant held a certificate dated 27th October 2000 for Plot P6105. The 1st Defendant, which issued both certificates, filed no response. Given the discrepancy between the plots claimed and the internal inconsistency in the Plaintiffs' own material, the court could not find an apparently infringed right and found the first Giella condition unmet.

p. 2
02

Whether the court should proceed to consider irreparable injury and balance of convenience

Holding

No. Having failed on the first, threshold condition, the court did not venture into the other Giella conditions.

Reasoning

Relying on Kenya Commercial Finance Co. Ltd v Afraha Education Society and Nguruman Ltd v Jan Bonde Nielsen, the court held the Giella conditions are sequential; where no prima facie case is established, irreparable injury and balance of convenience need no consideration.

p. 3

Legal principles established

#
  • The conditions for an interlocutory injunction in Giella v Cassman Brown are sequential: the second and third conditions need only be addressed if the applicant first establishes a prima facie case with a probability of success
  • If no prima facie case is established, irreparable injury and balance of convenience need no consideration
  • In an interlocutory application the court makes no conclusive or definitive findings of fact or law on contradictory affidavit evidence

Court orders

#
  1. 1.The Notice of Motion dated 19th September 2012 is dismissed
  2. 2.Costs shall be in the cause

Authorities

#

Cases cited (5)

  • Giella versus Cassman Brown
    (1973) EA 358
  • Mrao versus First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Airland Tours & Travels Ltd versus National Industrial Credit Bank
    Milimani High Court Civil Case No. 1234 of 2002
  • Kenya Commercial Finance Co. Ltd versus Afraha Education Society
    (2001) 1 EA 86
  • Nguruman Ltd versus Jan Bonde Nielsen
    (2014) eKLR
Jurisdiction invoked
Not expressly stated; the court exercised original civil jurisdiction over an interlocutory application in a pending suit

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Michael Karita Muiru& another v Embakasi Ranching Company Ltd & another [2017] KEELC 1790 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1790/eng@2017-09-01

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