Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedHigh Court Civil Suit arising from Notice of Motion dated 21st October 2016 (Court of Appeal Civil Appeal No. 280 of 2001 referenced as background)· [2017] KEELC 2923 (KLR)

Ernest Muriuki Mungai v Gichugu Constituency Development Fund & another [2017] KEELC 2923 (KLR)

High Court of Kenya (Environment and Land jurisdiction, Kerugoya)
21 April 2017
2,663 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan landowner with a valid title stopped a county market project on his land, but suing the CDF committee instead of the NG-CDF Board cost him its costs.

What this practically means

#

Executive summary

#
This ruling by B.N. Olao J dated 21st April 2017 determines the plaintiff's Notice of Motion dated 21st October 2016 seeking an interlocutory injunction in a land dispute over parcel No. BARAGWE/RAIMU/2536. The plaintiff, who produced a title deed dated 2nd October 2009, sought to restrain the 1st and 2nd defendants from interfering with his quiet possession. The 1st defendant, a CDF committee for Gichugu Constituency, raised a preliminary objection under Section 56(3) of the National Government Constituencies Development Fund Act 2015, arguing it is not a juridical body and that disputes must first go to the Board established under Section 14 of the Act. The court applied the principle that jurisdiction is everything and held that only the Board can sue or be sued, striking out the 1st defendant. The court distinguished the Victor Shiribwa Uwanga decision relied on by the plaintiff because there the Board was a party. Turning to the application against the 2nd defendant, the County Government of Kirinyaga, the court applied the Giella v Cassman Brown principles: the plaintiff's registration conferred indefeasible title under Section 26(1) of the Land Registration Act, establishing a prima facie case; construction of a market would cause irreparable injury not compensable by damages; and the balance of convenience favoured the plaintiff. The court issued a temporary injunction against the 2nd defendant, declined to direct the OCS at this stage, directed the suit to be heard within 12 months, and ordered the plaintiff to pay the 1st defendant's costs, with application costs in the cause.

Key legal issues

#
01

Whether the CDF committee is a proper party to the suit

Holding

The CDF committee is not a juridical body capable of being sued; only the NG-CDF Board established under Section 14 of the Act can sue or be sued. The 1st defendant was struck out.

Reasoning

The court invoked the jurisdictional principle that jurisdiction must be determined at the earliest opportunity. Section 56(3) of the NG-CDF Act 2015 requires civil disputes to be referred to the Board first. The plaintiff's reliance on Victor Shiribwa was distinguished because in that case the Board was itself a party and other respondents had been struck out; here the Board is not a party and the County Government is involved.

p. 3
02

Whether the plaintiff established a prima facie case

Holding

Yes. The plaintiff's title deed dated 2nd October 2009 established him as absolute and indefeasible owner, prima facie entitled to protection and to eject trespassers.

Reasoning

Under Section 26(1) of the Land Registration Act, registration is conclusive evidence of ownership, subject only to encumbrances and challengeable only on grounds of fraud or an illegal or un-procedural scheme. The allegations of fraud by the 1st defendant's chairman were matters for the trial court, on which no definitive findings could be made at the interlocutory stage.

p. 4
03

Whether irreparable injury would be suffered absent an injunction

Holding

Yes. A market constructed on the suit land would cause substantial loss greater than any the 2nd defendant would suffer if restrained.

Reasoning

Applying the definitions of irreparable injury from Black's Law Dictionary and Halsbury's Laws of England, and the Nguruman test, the court held that the injury from a completed market building would be substantial and not easily estimated or repaired by money, outweighing the prejudice to the 2nd defendant. The balance of convenience also favoured the plaintiff.

p. 5
04

Whether the Victor Shiribwa Uwanga decision applied to this case

Holding

Distinguished. In that case the Board was a party and other respondents had been struck out, justifying referral to the Board; here the Board is not a party.

Reasoning

The court found the route in that decision would not be efficacious because the dispute also involved the County Government of Kirinyaga, against whom only the High Court could grant the orders sought with respect to the suit land.

p. 3

Legal principles established

#
  • Only the NG-CDF Board established under Section 14 of the Act can sue or be sued, not the constituency CDF committee
  • Section 56(3) of the NG-CDF Act requires civil disputes to be referred to the Board in the first instance
  • Registration under Section 26(1) of the Land Registration Act confers absolute and indefeasible title, challengeable only on grounds of fraud or illegality
  • Interlocutory injunctions are governed by the Giella v Cassman Brown principles

Court orders

#
  1. 1.The 1st defendant is struck off from these proceedings
  2. 2.Temporary injunction restraining the 2nd defendant, by itself or those acting under it, from carrying out any development or interfering with the plaintiff's quiet possession of land parcel No. BARAGWE/RAIMU/2536 pending the hearing and determination of the suit
  3. 3.No orders directed to the OCS Kianyaga Police Station at this stage; either party at liberty to apply if need be
  4. 4.Parties to comply with pre-trial directions and have the suit heard and determined within the next 12 months
  5. 5.The plaintiff to meet the 1st defendant's costs
  6. 6.Costs of the application in the cause

Authorities

#

Legislation

  • National Government Constituencies Development Fund ActSection 56(3)
  • National Government Constituencies Development Fund ActSection 14
  • Land Registration ActSection 26(1)
  • Land Acquisition Actnot specified

Cases cited (7)

  • OWNERS OF THE MOTOR VEHICLE "LILLIAN S" VS CALTEX OIL (KENYA) LTD
  • MUKISA BISCUIT MANUFACTURING CO. LTD VS WEST END DISTRIBUTORS
    1969 E.A 696
  • VICTOR SHIRIBWA UWANGA & OTHERS VS HAMISI CONSTITUENCY & OTHERS
    Kisumu High Court Petition No. 20 of 2016
  • GIELLA VS CASSMAN BROWN & CO. LTD
    1973 E.A 358
  • MRAO LTD VS FIRST AMERICAN BANK OF KENYA & OTHERS
    (2003) K.L.R 125
  • FILMS ROVER INTERNATIONAL LTD VS CANNON FILMS SALE LTD
    1986 3 ALL E.R 772
  • NGURUMAN LTD VS JAN BONDE NIELSEN & OTHERS
    (2014)
Jurisdiction invoked
Original civil jurisdiction of the High Court over land disputes; National Government Constituencies Development Fund Act 2015, Section 56(3) (raised as a jurisdictional bar)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (4)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Ernest Muriuki Mungai v Gichugu Constituency Development Fund & another [2017] KEELC 2923 (KLR)", Case Analysis (2017). High Court Civil Suit arising from Notice of Motion dated 21st October 2016 (Court of Appeal Civil Appeal No. 280 of 2001 referenced as background). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2923/eng@2017-04-21

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