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ELCDismissedNotice of motion dated 12th January 2015 in the principal suit filed 26th February 2014· [2017] KEELC 2388 (KLR)

Lucy Wangari Muchiri v John Nganga Kihura & 6 others [2017] KEELC 2388 (KLR)

Environment and Land Court
27 June 2017
EOE. O. Obaga
1,449 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a landowner's bid to block a Nairobi property transfer because her documents failed to prove a strong enough claim.

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 12th January 2015 seeking an interim injunction to restrain the first and second defendants from transferring, alienating, disposing of, leasing, trespassing on or otherwise interfering with LR No. Nairobi Block 126/3 pending the hearing of the suit. She claimed she bought a share in Ngundu Farmers Co-operative Society Limited from Susan Ngendo in 1989, was registered as member No. 582, and was allocated the suit land, but never obtained title. The first respondent opposed, stating he had sold his half share to Mawega Company Limited (the interested party) and a certificate of lease had issued jointly to it and the second respondent before the suit. The second respondent traced ownership through her late mother, a shareholder allotted Plot 5 which became the suit land, whose shares passed to her children through succession. The interested party said it had sub-divided its half and sold to third parties. The court framed a single issue: whether the applicant had demonstrated a prima facie case against the respondents. Applying Giella v Cassman Brown and Mrao v First American Bank, the court found the applicant's documents inconsistent and incapable of linking her share to the suit land, that the first respondent had no remaining interest, and that an injunction could not affect innocent third-party purchasers. The application was dismissed with costs to the first and second respondents and the interested party.

Key legal issues

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01

Whether the applicant established a prima facie case against the respondents to warrant an interlocutory injunction

Holding

The applicant failed to establish a prima facie case against either respondent and the application was dismissed with costs.

Reasoning

Applying Giella v Cassman Brown, the applicant had to show a prima facie case with probability of success. The first respondent had sold his half share to Mawega Company Limited and a certificate of lease had issued in November 2013, before the suit. The applicant's own documents were internally inconsistent (a share certificate dated before the sale agreement, an erased name) and did not link her purchased share to the suit land, while the second respondent traced the property through her mother's shareholding and succession. Third parties had also bought sub-divided portions.

p. 3

Legal principles established

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  • A prima facie case is the cornerstone of the Giella principles; once an applicant fails to establish a prima facie case, the other principles need not be considered.
  • No injunction can issue against a party with no interest in the suit property, and an injunction cannot issue to affect innocent third parties who are not parties to the suit.

Court orders

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  1. 1.The applicant's notice of motion dated 12th January 2015 is dismissed
  2. 2.Costs to the first and second respondents as well as the interested party

Authorities

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Cases cited (2)

  • Giella – Vs- Cassman Brown & Co.
    [1973] EA 358
  • Mrao Ltd – Vs- First American Bank of Kenya Ltd. & 2 others
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

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, "Lucy Wangari Muchiri v John Nganga Kihura & 6 others [2017] KEELC 2388 (KLR)", Case Analysis (2017). Notice of motion dated 12th January 2015 in the principal suit filed 26th February 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2388/eng@2017-06-27

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