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ELCDismissed· [2017] KEELC 2538 (KLR)

James Muthoni Gibson v Stephen Kariuki Charles [2017] KEELC 2538 (KLR)

Environment and Land Court
28 June 2017
YAY.M. Angima
1,033 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Embu (Y.M. Angima, J) on the Plaintiff's Notice of Motion dated 7th December 2016, filed with the suit, seeking injunctions to restrain the Defendant from interfering with the running of her school, destroying structures and disrupting economic activities on Title No. KAGAARI/KIGAA/7246. The Plaintiff claimed she bought the property from the Defendant in May 2012 for Kshs 300,000/-, obtained Land Control Board consent on 6th July 2012, and constructed Runyenjes Precious Academy thereon, though the property was never transferred; in the suit she sought an order for transfer. The Defendant denied selling the property, asserting he bought it in January 2012 and rented it to the Plaintiff, who had defaulted on rent, making the suit a ploy to avoid rent arrears. The court observed the application sought a permanent injunction at the interlocutory stage, a drafting error of no substance, and noted there were no particulars of the alleged interference or destruction either in the plaint or affidavits, and none was supplied by supplementary affidavit. Applying Mrao Ltd v First American Bank and the Giella v Cassman Brown principles, the court held no prima facie case with a probability of success was established, and since the Plaintiff failed at the first hurdle, the second and third principles did not fall for consideration. The Notice of Motion was dismissed with costs on 28th June 2017.

Key legal issues

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01

Whether the Plaintiff demonstrated a prima facie case with a probability of success for the grant of an interlocutory injunction

Holding

No - the Plaintiff gave only general allegations of interference, destruction and economic sabotage without particulars, so the first Giella principle was not satisfied

Reasoning

The court noted there were absolutely no particulars of the acts complained of, that no allegations of interference were pleaded in the plaint, and that no supplementary affidavit supplied particulars. Without knowing what the Defendant allegedly did or threatened, the court could not find an apparent infringement of a legal right, whether as tenant or owner. Having failed at the first hurdle, the second and third Giella principles did not fall for consideration.

p. 2
02

Whether a defective prayer seeking a permanent injunction at interlocutory stage defeats the application

Holding

No - such drafting error does not affect the substance; the court treated the application as seeking a temporary injunction

Reasoning

The application was inelegantly drawn by the Plaintiff before engaging advocates, seeking a permanent injunction at the interlocutory stage. The court held the error did not affect the substance and that the Plaintiff must have intended a temporary injunction pending trial. The substantive defect was instead the absence of particulars and failure to establish a prima facie case.

p. 1

Legal principles established

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  • A prima facie case is one which, on the material presented, the court concludes there exists a right apparently infringed by the opposite party so as to call for an explanation or rebuttal
  • General allegations without particulars of the acts complained of cannot establish a prima facie case for an injunction; where the first Giella principle fails, the remaining principles need not be considered

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 7th December 2016 is dismissed
  2. 2.Costs of the application to the Defendant

Authorities

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Cases cited (2)

  • Mrao Ltd Vs First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Giella Vs Cassman Brown & Co Ltd
    [1973] EA 358
Jurisdiction invoked
Inherent jurisdiction to grant interlocutory injunctions (Giella v Cassman Brown principles)

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, "James Muthoni Gibson v Stephen Kariuki Charles [2017] KEELC 2538 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2538/eng@2017-06-28

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