Martin Muhindi v Peter Mbuti & another [2017] KEELC 1867 (KLR)
The bottom line
#A Nairobi court blocked any further dealings with two Ruai plots pending full trial, but refused to order exhumation of a body buried there.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success
Yes - the Plaintiff produced Non-member Certificates of Plot Ownership in his late mother's name and a confirmation letter from the 2nd Defendant, uncontested by the 1st Defendant
The Applicant annexed two Non-member Certificates of Plot Ownership for the suit plots in the name of Grace Wairimu Muhindi, plus a letter dated 25th April 2014 from the 2nd Defendant confirming Plot No. V805 belonged to her. The 1st Defendant filed no documents or reply to controvert this. The court therefore found the late mother was owner of the suit plots, establishing a prima facie case with probability of success at the main trial.
Whether damages would be an adequate remedy
No - damages would not suffice for breach of the Plaintiff's right of possession over land
Relying on Niaz Mohamed Jan Mohamed v The Commissioner of Lands, the court held that no amount of money can compensate infringement of the right of possession of land. The filing of uncontroverted ownership documents and the burial of a body on the plots meant damages would not atone for the breach pending hearing of the suit.
Where the balance of convenience lies
It tilts in favour of the Plaintiff, since apart from the grave there was no evidence the 1st Defendant was in physical possession of the suit plots
Applying Nguruman Ltd v Jan Bonde Nielsen, the court compared the inconvenience to each party. The only evidence of the 1st Defendant's connection to the plots was the grave; there was no evidence of physical possession. The balance of convenience therefore favoured the Plaintiff, supporting the grant of the injunction.
Legal principles established
#- Conditions for grant of an interlocutory injunction: prima facie case with probability of success, irreparable injury not compensable in damages, and balance of convenience
- Definition of a prima facie case in civil applications
- In interlocutory applications the court makes no conclusive or definitive findings of fact or law
Court orders
#- 1.Temporary injunction restraining the Defendants/Respondents from trespassing on, wasting, constructing on, alienating or otherwise interfering with Plot No. V804 and V805 Ruai pending the hearing and determination of the suit
- 2.Refusal of the order to exhume the body of Miriam Wambui Mbuti at this juncture
- 3.Costs of the application to the Plaintiff
- Jurisdiction invoked
- Not expressly stated; original civil jurisdiction over land (suit plots Plot No. V804 and V805 Ruai)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Muhindi v Peter Mbuti & another [2017] KEELC 1867 (KLR)", Case Analysis (2017). Not stated in the judgment (Notice of Motion dated 3rd July 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1867/eng@2017-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.