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ELCAllowedNot stated in the judgment as provided· [2017] KEELC 1911 (KLR)

Jackson Gathumbi Mutuota v Mwiki Company Limited & another [2017] KEELC 1911 (KLR)

Environment and Land Court
19 September 2017
EOE. O. Obaga
930 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court stopped the sale and interference with land a fraudster had wrongly transferred, confirming courts will preserve land because money cannot replace it.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the court by Notice of Motion dated 20th July 2016 seeking an interlocutory injunction restraining the defendants, their agents and any persons claiming under them, from interfering with or transferring to a third party all that piece of land known as Land Reference Number 434 comprised in certificate No. 1441 (suitland) pending the hearing and determination of the suit, plus costs. The applicant had bought the suitland from Jemimah Wambui Kinyanjui on 19th September 1997 from a land buying company (the first respondent), paid transfer fees, had the records changed and was issued a share certificate. In April 2016 he found the second respondent had erected buildings on the land; investigations revealed one Michael Njuguna had purportedly acquired the land from a fraudster masquerading as the applicant and sold it to the second respondent, who claimed to have done due diligence and built residential houses. The first respondent filed a defence but did not respond to the application; the second respondent opposed by replying affidavit. The court applied the Giella v Cassman Brown test, found the applicant had a prima facie case with probability of success, that the forgeries were not attributed to him, that the second respondent had not produced transfer documents, and that land being a unique asset, damages would not be adequate. The application was allowed in terms of prayers (c) and (d), with costs to the defendants, and the injunction issued pending hearing of the suit.

Key legal issues

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01

Whether the applicant met the Giella v Cassman Brown threshold for an interlocutory injunction

Holding

The applicant demonstrated a prima facie case with probability of success and damages would not be adequate compensation for land, so an injunction issued.

Reasoning

The applicant purchased the suitland from Jemimah Wambui Kinyanjui in 1997, was issued a share certificate by the first respondent, and never sold the land. Investigation showed a fraudster impersonated the applicant, Michael Njuguna Muratha acquired and sold the land to the second respondent. The forgeries were not attributed to the applicant, and the second respondent failed to show documents for the transfer to her. Land being unique, damages would not suffice, justifying preservation by injunction.

p. 2

Legal principles established

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  • Land is a unique asset such that damages are generally not an adequate remedy where the suitland may be lost.

Court orders

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  1. 1.Injunction restraining the defendants, their agents, servants and any person claiming under them from interfering with and/or transferring to a third party all that piece of land known as Land Reference Number 434 comprised in certificate No. 1441 (suitland) pending the hearing and determination of the suit
  2. 2.Costs of the application to be borne by the defendants

Authorities

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Cases cited (1)

  • Giella Vs Cassman Brown Co.Ltd
Jurisdiction invoked
Inherent jurisdiction of the court to grant interlocutory injunctions (Giella v Cassman Brown threshold) in a pending land suit

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, "Jackson Gathumbi Mutuota v Mwiki Company Limited & another [2017] KEELC 1911 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1911/eng@2017-09-19

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