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ELCPartially AllowedNot stated in the judgment (interlocutory application dated 23rd February 2016)· [2017] KEELC 3184 (KLR)

Loise Mabuti v Nancy Wambui & another [2017] KEELC 3184 (KLR)

Environment and Land Court
31 March 2017
BOB.N. Olao
1,792 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court protected a landowner from trespass but refused to restrict co-owned land where the co-owners were not part of the case.

What this practically means

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Executive summary

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This ruling by B.N. Olao J of the Environment and Land Court determines the plaintiff Loise Mabuti's Notice of Motion dated 23rd February 2016, brought under Order 40 Rules 1 and 2 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking a temporary injunction and prohibitory orders against the defendants, Nancy Wambui and Hesbon Kiambati, in respect of land parcels NGARIAMA/NGIRIAMBU/1036 and 1037, carved out of the original parcel 135, whose sub-division in 1978/1979 the plaintiff alleges was fraudulent. The defendants opposed, asserting joint ownership of parcel 1037 with non-parties and raising limitation, and denying trespass. Applying the Giella v Cassman Brown conditions and the definition of a prima facie case in Mrao v First American Bank, and drawing on Nguruman Ltd v Jan Bonde Nielsen, the court held that no prima facie case could be established over parcel 1037 because it is jointly registered with three non-parties who were never enjoined despite a pending but unprosecuted application; orders against strangers would improperly curtail proprietary rights without a hearing. Injunction and prohibitory relief over that parcel was therefore refused. As regards parcel 1036, the defendants concede the plaintiff's ownership, and photographic evidence of destroyed crops established trespass, so damages would be inadequate. The court granted a temporary injunction restraining the defendants from entering, trespassing on, destroying crops on or committing acts of waste on parcel 1036 pending the hearing and determination of the suit, awarded costs in the cause, and directed compliance with pre-trial directions so the suit is heard within twelve months. The application was partially allowed.

Key legal issues

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01

Whether the plaintiff established a prima facie case for injunctive relief over parcel 1037

Holding

No prima facie case was established because the parcel is co-owned by non-parties whose rights would be curtailed

Reasoning

The Green Card shows parcel 1037 is registered in the names of the two defendants plus James Muriithi, Beth Karimi Nyaga and John Kathuri Nyaga, who are not parties. An application to enjoin them filed in September 2015 was never prosecuted. Issuing injunctions or prohibitory orders over the parcel would curtail the proprietary rights of strangers without according them a hearing, so the plaintiff's case is not more likely than not to succeed.

p. 3
02

Whether an interlocutory injunction should issue in respect of parcel 1036

Holding

Yes; the defendants concede ownership by the plaintiff and photographic evidence shows crops destroyed, amounting to trespass

Reasoning

The defendants admit parcel 1036 belongs to the plaintiff but deny trespassing on it. The plaintiff deponed to forceful entries on 17th November 2015 and 22nd February 2016 during which crops were destroyed and her son injured, annexing photographs. Since ownership is conceded and trespass is apparent, a clear transgression of the law exists for which damages would be inadequate, justifying the injunction.

p. 3

Legal principles established

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  • A prima facie case cannot be established where the orders sought affect persons who are strangers to the suit
  • Where there is a clear transgression against the law, damages will not be a sufficient remedy

Court orders

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  1. 1.The defendants themselves, their agents and/or servants are restrained from trespassing, entering, destroying crops or committing any acts of waste on the plaintiff's land parcel No. NGARIAMA/NGIRIAMBU/1036 pending the hearing and determination of this suit
  2. 2.Costs in the cause
  3. 3.The parties are directed to comply with the pre-trial directions so that this suit is heard and determined in the next twelve (12) months

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (4)

  • GIELLA VS CASSMAN BROWN & CO. LTD
    1973 E.A 358
  • MRAO VS FIRST AMERICAN BANK OF KENYA LTD & OTHERS
    2003 K.L.R 125; C.A CIVIL APPEAL No. 39 of 2002 (2003 e K.L.R)
  • NGURUMAN LTD VS JAN BONDE NIELSEN & OTHERS
    C.A CIVIL APPEAL No. 77 of 2012
  • MOHAMED VS COMISSIONER OF LANDS & OTHERS
    K.L.R (E & L) 1, 217
Jurisdiction invoked
Order 40 Rules 1 and 2 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Loise Mabuti v Nancy Wambui & another [2017] KEELC 3184 (KLR)", Case Analysis (2017). Not stated in the judgment (interlocutory application dated 23rd February 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3184/eng@2017-03-31

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