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ELCDismissedEmbu ELC Case (amended Notice of Motion dated 25th November 2015, filed 9th December 2015, arising from original suit filed 14th November 2008 and amended 19th January 2015)· [2017] KEELC 3162 (KLR)

Kefa Nyaga Kariuki & 4 others v Municipal Council of Embu & another [2017] KEELC 3162 (KLR)

Environment and Land Court
3 March 2017
BOB. N. OLAO
2,092 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Embu Environment and Land Court dismissed a community's attempt to halt construction of Dallas Primary School because they proved no legal interest in the land.

What this practically means

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Executive summary

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The plaintiffs sought a temporary injunction under Order 40 of the Civil Procedure Rules restraining the defendant, Embu County Government, from constructing Dallas Primary School on land parcel GATURI/GITHIMU/38 (open space, 0.20 Ha) pending trial, claiming the defendant had compulsorily acquired land without compensation. The defendant opposed, relying on a certificate of search showing the suit land registered to one Munyi Mwithaga, and asserting the school was being built on surrendered public open space. Applying the Giella v Cassman Brown principles, the court first noted the internal contradiction in the defendant's position: it could not deny construction on parcel 38 when its own letter of 5th March 2015 proposed using that parcel for the school. Nonetheless, the plaintiffs failed at the first hurdle: they annexed no title document and demonstrated no interest in land registered to a non-party, so no prima facie case with a probability of success existed, rendering consideration of irreparable injury and balance of convenience superfluous. Further, the interlocutory injunction sought was at variance with the main suit, which concerned parcels 706, 780, 704 and 703, not parcel 38; an injunction over property not in dispute in the suit would exceed the court's Order 40 powers. The motion was dismissed with costs.

Key legal issues

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01

Prima facie case for temporary injunction

Holding

Not established - plaintiffs showed no interest in the suit land, which is registered in the name of a non-party

Reasoning

The plaintiffs did not annex any title document to the suit land, while the defendant's certificate of search showed registration in the name of Munyi Mwithaga, a stranger to the suit. The court found the plaintiffs to be strangers to the land and thus not entitled to injunctive relief, failing the first Giella principle.

p. 3
02

Injunction over land not in dispute in the main suit

Holding

Impermissible - the suit sought relief over parcels 706, 780, 704 and 703, while the motion targeted parcel 38

Reasoning

Order 40 empowers the court to protect property in dispute in the suit. Parcel 38 was not part of the substantive claim, so an interlocutory injunction over it would exceed the powers conferred by Order 40 of the Civil Procedure Rules.

p. 4
03

Approbate and reprobate

Holding

The defendant could not deny constructing on parcel 38 when its own letter proposed using that parcel for Dallas Primary School

Reasoning

Despite the replying affidavit asserting the school was not being constructed on parcel 38, the defendant's own letter of 5th March 2015 proposed utilizing that parcel for the school. The court held the defendant could not take contradictory positions and found the school was being constructed on the suit land.

p. 3

Legal principles established

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  • The Giella principles are considered sequentially; failure at the first stage renders consideration of the other two superfluous
  • An interlocutory injunction cannot be granted over property not in dispute in the main suit
  • Definition of a prima facie case per Mrao v First American Bank

Court orders

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  1. 1.The plaintiffs' amended Notice of Motion dated 25th November 2015 and filed on 9th December 2015 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1(a), 1(b) and 2
  • Land ActSection 111(1)
  • Physical Planning ActSection 31(b)
  • Constitution of Kenya 2010Article 64

Cases cited (4)

  • GIELLA VS CASSMAN BROWN & CO. LTD
    1973 E.A 358
  • MRAO VS FIRST AMERICAN BANK OF KENYA LTD & TWO OTHERS
    C.A CIVIL APPEAL No. 39 of 2002 (2003 eK.L.R)
  • FILMS ROVER INTERNATIONAL LTD VS CANNON FILM SALE LTD
    1986 3 ALL E.R 772
  • NGURUMAN LTD VS JAN BONDE NIELSEN & OTHERS
    C.A CIVIL APPEAL No. 77 of 2012
Jurisdiction invoked
Order 40 Rules 1 and 2 of the Civil Procedure Rules (injunctive relief in a pending suit)

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, "Kefa Nyaga Kariuki & 4 others v Municipal Council of Embu & another [2017] KEELC 3162 (KLR)", Case Analysis (2017). Embu ELC Case (amended Notice of Motion dated 25th November 2015, filed 9th December 2015, arising from original suit filed 14th November 2008 and amended 19th January 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3162/eng@2017-03-03

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