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ELCPartially Allowed· [2017] KEELC 3241 (KLR)

Githunguri Constituency Ranching Co. Ltd v Henry Wainaina Kihoro [2017] KEELC 3241 (KLR)

Environment and Land Court
24 January 2017
2,697 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

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A Kenyan land court froze over 200 disputed plots, ruling a title document alone does not prove legitimate ownership when that ownership is challenged.

What this practically means

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Executive summary

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The plaintiff company, acting through John Maina Mburu (described as shareholder, elected director and chairman), sued the defendant on 21st January 2016 alleging that while serving as an elected director, chairman and later board secretary, he illegally transferred over 200 parcels of the company's land to himself, sold some to non-members, allocated others to family members, and began constructing a permanent building on Plot Ruiru East Block 1/2405 bearing the plaintiff's name. Together with the plaint the plaintiff sought prohibitory and mandatory interlocutory injunctions. The defendant opposed through a preliminary objection on jurisdiction, based on an order by W. Korir J. suspending the results of the company's 17th December 2015 elections in Nairobi JR. Misc. Application No. 512 of 2015, and on alleged lack of locus standi of the instigating directors. The court dismissed the preliminary objection, holding that the present land dispute was unrelated to the election matter and that both the defendant and Mburu remained bona fide directors pending determination of the JR application; further, the objection did not raise a pure point of law. Applying Giella vs. Cassman Brown, Mrao, and Munyu Maina, the court found the plaintiff had established a prima facie case, since the defendant, though registered proprietor, offered no evidence tracing the root of his titles, and that damages would not adequately compensate for likely disposal of the properties. A prohibitory injunction issued restraining the defendant from selling, transferring, alienating, wasting, charging or mortgaging the suit properties pending trial. However, the court refused the mandatory injunction to demolish structures on Ruiru East Block 1/2405, absent special circumstances, and declined to grant the injunction against operating the company's office, holding it lacked jurisdiction over company management disputes. Costs were to be in the cause.

Key legal issues

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01

Jurisdiction premised on a subsisting court order in a separate judicial review matter

Holding

The preliminary objection on jurisdiction failed because the dispute before the court concerns property allegedly acquired illegally, not the legality of the plaintiff's elections; the order of 22nd December 2015 was irrelevant to these proceedings

Reasoning

The court found the JR Misc. Application No. 512 of 2015 concerned election legality, while this suit concerns illegal transfers of land. The two cases were unrelated. Following the suspension of the 17th December 2015 election results, the pre-election directors, including both the defendant and John Maina Mburu, remained bona fide directors, so locus standi was not defeated.

p. 2
02

Whether the preliminary objection met the Mukisa Biscuit test

Holding

The objection did not raise a pure point of law since it required the court to ascertain the bona fide directors of the plaintiff, an exercise requiring delving into facts

Reasoning

Applying the Mukisa Biscuit definition, a preliminary objection must be argued on the assumption that all facts pleaded by the other side are correct and cannot be raised where any fact has to be ascertained. Determining who the bona fide directors of the plaintiff are requires factual inquiry; hence the objection was incompetent.

p. 3
03

Whether the plaintiff established a prima facie case for a prohibitory injunction

Holding

The plaintiff established a prima facie case and irreparable injury; a prohibitory injunction was granted over the suit properties pending trial

Reasoning

The defendant admitted being registered proprietor of over 200 parcels but gave no evidence tracing the root of his titles despite serious allegations of illegal allocation. Following Munyu Maina vs. Hiram Gathiha Maina, a challenged proprietor must prove legality of acquisition beyond the title instrument. Some properties were likely to be disposed of pending trial, constituting irreparable injury not compensable in damages.

p. 4
04

Whether an interlocutory mandatory injunction should issue for demolition of structures on L.R No. Ruiru East Block 1/2405

Holding

Mandatory injunction refused; no special circumstances and the case was not so clear as to warrant such a major relief without a trial

Reasoning

Applying Kenya Breweries Ltd & another vs. Washington Okeyo, a mandatory injunction at the interlocutory stage requires special circumstances and clear cases where the matter ought to be decided at once. The plaintiff's case was not sufficiently clear, and the allegations remained to be proved at trial.

p. 4

Legal principles established

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  • When a registered proprietor's root of title is under challenge, it is not sufficient to produce the instrument of title; the proprietor must prove the legality of how the title was acquired
  • A preliminary objection must raise a pure point of law and cannot be raised where facts must be ascertained or judicial discretion exercised

Court orders

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  1. 1.Pending the hearing and determination of the suit or further orders, the defendant, by himself or through agents or servants, is restrained from selling, transferring, alienating, wasting, charging or mortgaging the suit properties or any of them
  2. 2.Costs of the application and the preliminary objection to be in the cause

Authorities

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Cases cited (7)

  • Air Alfaraj Limited vs. Raytheon Aircraft Credit Corporation & another
    Nairobi Civil Application No. 29 of 1999
  • Mukisa Biskuit Manufacturing Co. Ltd vs. West End Distributors Ltd
    (1969) EA 696
  • Giella vs. Cassman Brown & Co. Ltd
    (1973) E.A 358
  • Munyu Maina vs. Hiram Gathiha Maina
    Nyeri CA No. 239 of 2009
  • Mrao Limited vs. First American Bank Limited & 2 Others
    (2003) KLR 125
  • Nguruman Limited vs. Jan Bonde Nielsen
    No. 77 of 2012
  • Kenya Breweries Ltd & another vs. Washington Okeyo
    (2002) 1 E.A. 109
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (jurisdiction objected to but upheld)

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, "Githunguri Constituency Ranching Co. Ltd v Henry Wainaina Kihoro [2017] KEELC 3241 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3241/eng@2017-01-24

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