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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicants established a prima facie case with probability of success under the Giella v Cassman Brown test
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
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.
Whether an injunction could issue where the construction sought to be restrained is already complete
No; injunctions restrain threatened or prospective events, not completed ones, and orders cannot issue in vain
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.
Legal principles established
#- 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
#- 1.The application dated 21st September 2016 is dismissed with costs to the first Respondent
- Jurisdiction invoked
- Inherent jurisdiction of the High Court over an interlocutory application in a civil suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.