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ELCDismissedNotice of Motion dated 24th April 2016 (suit number not stated in the judgment)· [2017] KEELC 2753 (KLR)

Fredrick Muthama Nzioka & another v Peter W. MathengeT/A Joman Timber Yard & Hardware (Kwa Mathenge) [2017] KEELC 2753 (KLR)

Environment and Land Court
28 April 2017
2,321 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 refused to stop a claimed trespasser because the landowners could only produce an allotment letter, not a title deed.

What this practically means

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Executive summary

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The Plaintiffs, a husband and wife, moved the court by Notice of Motion dated 24th April 2016 seeking a temporary injunction restraining the Defendant from trespassing on, occupying or dealing with Plot No. 3, Kasina Housing Scheme Society in Mlolongo, together with a mandatory injunction compelling him to remove timber and demolish a structure erected thereon pending the hearing of the suit. They claimed to have purchased the plot in 2005, obtained a share certificate and a Letter of Allotment dated 14th December 2007 from the Commissioner of Lands, with title processing underway. The Defendant denied trespass, asserting he owns Plot No. 1 (now No. 8) Phase II C, a subdivision of L.R. No. 25062 owned by Mavoko Land Development Company, which is in litigation with Kasina Housing Scheme Society in ELC No. 366 of 2009. Applying Giella v Cassman Brown and Mrao v First American Bank, the court held that the Plaintiffs had not established a prima facie case with a probability of success: the competing ownership claims rested on contradictory affidavit evidence, neither side held duly issued title documents, and the Plaintiffs relied only on a Letter of Allotment. Since the first Giella condition failed, the remaining conditions fell away, per Kenya Commercial Finance v Afraha Education Society and Nguruman v Jan Bonde Nielsen. The mandatory injunction prayer also failed, the court applying the higher Locabail and Homes Limited threshold requiring a clear and unusually strong case. The application was dismissed with costs in the cause, and the dispute reserved for full trial.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case with a probability of success for a temporary injunction

Holding

They did not; their claim rested on a Letter of Allotment without a Certificate of Title, the Defendant claimed the land was a different plot within L.R. No. 25062 owned by Mavoko Land Development Company, and the onus on the Plaintiffs was not discharged

Reasoning

The court found itself confronted with contradictory affidavit evidence in which each party asserted ownership of a differently described parcel, with neither holding duly issued title documents. The Plaintiffs admitted they held no Certificate of Title, relying only on a Letter of Allotment and share certificate. Given the definition of a prima facie case as a genuine and arguable case, the court held the threshold had not been met and the application failed at the first Giella condition.

p. 3
02

Whether a mandatory injunction to demolish the structure and remove timber should issue at the interlocutory stage

Holding

No; mandatory injunctions at interlocutory stage require special circumstances and a clear, unusually strong case, which was absent

Reasoning

Relying on Locabail International v Agro Export and Homes Limited v Shandahu, the court applied the higher standard for mandatory interlocutory injunctions. Since the Plaintiffs had already failed the prima facie threshold for a prohibitory injunction, and the case was neither plain nor obvious, the court declined to sanction eviction of the Defendant at this stage, reserving the question of eviction for the full trial.

p. 4

Legal principles established

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  • The conditions for the grant of an interlocutory injunction in East Africa are a prima facie case with probability of success, irreparable injury not compensable in damages, and, if in doubt, the balance of convenience
  • The Giella conditions are sequential; if the first is not established, the remaining conditions need not be considered
  • A mandatory injunction ought not to be granted on an interlocutory application absent special circumstances and only in clear cases, on a higher standard than for a prohibitory injunction
  • In an interlocutory application the court makes no conclusive or definitive findings of fact or law on contradictory affidavit evidence

Court orders

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  1. 1.The Notice of Motion dated 24th April 2016 is dismissed in its entirety
  2. 2.Costs shall be in the cause

Authorities

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Cases cited (7)

  • Giella versus Cassman Brown
    (1973) EA 358
  • Mrao versus First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Airland Tours & Travels Ltd versus National Industrial Credit Bank
    Milimani High Court Civil Case No. 1234 of 2002
  • Kenya Commercial Finance Co. Ltd versus Afraha Education Society
    (2001) 1 EA 86
  • Nguruman Ltd versus Jan Bonde Nielsen
    (2014) eKLR
  • Locabail International versus Agro Export
    (1986) 1 ALL ER 901
  • Homes Limited versus Shandahu
    (1971) 1 Ch. 34
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to land in Mlolongo (Plot No. 3, Kasina Housing Scheme Society / L.R. No. 11895/35); no specific provision cited in the judgment

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, "Fredrick Muthama Nzioka & another v Peter W. MathengeT/A Joman Timber Yard & Hardware (Kwa Mathenge) [2017] KEELC 2753 (KLR)", Case Analysis (2017). Notice of Motion dated 24th April 2016 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2753/eng@2017-04-28

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