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ELCDismissedNotice of Motion dated 21st September 2016 (suit pending before the High Court)· [2017] KEELC 2381 (KLR)

Macharia Mwangi & 2 others ( Suing as the Registered Officials of Kamiti Corner Welfare Group Kiambaa Settled Area v Joseph Gachoki Gitari & 4 others [2017] KEELC 2381 (KLR)

High Court of Kenya
8 May 2017
1,255 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 refused to stop a completed building, confirming that Kenyan courts cannot issue injunctions against events that have already happened.

What this practically means

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Executive summary

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The applicants, officials of the Kamiti Corner Welfare Group Kimbaa Settled Area residents association, sought a temporary injunction restraining the first Respondent from constructing multi-dwelling units on plot No. 94, a subdivision of LR No. 7019 (5805/2), on the basis that the area was a controlled development zone where only bungalows or maisonettes could be built pursuant to agreements with the seller, Murarandia Development Company Limited. The first Respondent opposed, arguing the application was overtaken by events, that he was not a member of the association, and that he never signed any agreement restricting his development. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the court found the applicants had not established a prima facie case. The only agreement exhibited related to plot No. 134 on LR No. 7019 (5805/1), a different parcel, and was an individual agreement binding only its parties. No evidence showed the first Respondent was bound by association regulations or that the area had been zoned by the then Kiambu County Council; zoning is a function of the local Council. Further, the construction had already been completed when the application was filed, and following Jane Kemunto Mayaka v Municipal Council of Nakuru, the court held that injunctions do not issue to restrain completed events since orders cannot be issued in vain. The Notice of Motion was dismissed with costs to the first Respondent. The ruling was delivered at Nairobi on 8th May 2017 by E. O. Obaga J.

Key legal issues

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01

Whether the applicants established a prima facie case with probability of success under the Giella v Cassman Brown test

Holding

They did not; the agreement exhibited related to a different parcel (LR No. 7019 (5805/1)) and to different parties, and no evidence showed the first Respondent was bound by association regulations or that zoning restricted the development

Reasoning

The applicants relied on an individual sale agreement concerning plot No. 134 on LR No. 7019 (5805/1), a different property from the suit parcel. The agreement was binding only on its parties, the first Respondent denied membership of the association, and no individual agreements of the applicants were annexed. Zoning is a function of the local Council, and no evidence of zoning was produced. The claim of payments made 'through his wife' was unsupported.

p. 3
02

Whether an injunction could issue where the construction sought to be restrained is already complete

Holding

No; injunctions restrain threatened or prospective events, not completed ones, and orders cannot issue in vain

Reasoning

The court observed that the applicants only moved to court after the first Respondent had completed constructing his house, which is how they knew its type and number of units. Applying Jane Kemunto Mayaka v Municipal Council of Nakuru, the court held injunctions protect against events not yet occurred; what was meant to be stopped had already taken place.

p. 2

Legal principles established

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  • An injunction is never granted to restrain what has already happened, because court orders cannot be issued in vain
  • An agreement between a developer and one purchaser binds only its parties and does not automatically extend to other parcels owned by the same developer

Court orders

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  1. 1.The application dated 21st September 2016 is dismissed with costs to the first Respondent

Authorities

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Cases cited (3)

  • Giella Vs Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao Ltd Vs First American Bank of Kenya and 2 Others
    (2003) KLR 125
  • Jane Kemunto Mayaka Vs Municipal Council of Nakuru & Others
    High Court Civil Case No. 124 of 2005
Jurisdiction invoked
Inherent jurisdiction of the High Court over an interlocutory application in a civil 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, "Macharia Mwangi & 2 others ( Suing as the Registered Officials of Kamiti Corner Welfare Group Kiambaa Settled Area v Joseph Gachoki Gitari & 4 others [2017] KEELC 2381 (KLR)", Case Analysis (2017). Notice of Motion dated 21st September 2016 (suit pending before the High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2381/eng@2017-05-08

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