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ELCDismissedNot stated in the judgment (Environment and Land Court suit at Nairobi)· [2017] KEELC 3443 (KLR)

Boniface Macharia Kamande v Samuel Njoroge Muchiri [2017] KEELC 3443 (KLR)

Environment and Land Court
6 February 2017
976 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Nairobi land court threw out both sides' injunction bids because one party's documents looked faked and neither proved a clear claim to the plot.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (E. O. Obaga, J) on two competing injunction applications: one dated 9th October 2014 by the plaintiff, and another dated 8th December 2015 by the defendant. Both parties claimed beneficial ownership of unregistered plots allocated by the former City Council of Nairobi - the plaintiff over plot No. 4/480 Soweto and the defendant over plot No. 3/339 Soweto. The court found that both parties were in truth fighting over one and the same plot on the ground. The plaintiff had previously been sued in Milimani Chief Magistrate's Civil Case No. 5682 of 2011, in which a demolition order was made and executed against him; his attempt to set aside that order failed after the trial magistrate found his documents had been altered. The court further found the plaintiff's claim of allocation in 1991 implausible since his ID card showed he was only 13 years old then, and other documents indicated a 2009 allocation. Applying the principles for injunctions, the court held the plaintiff had not demonstrated a prima facie case with probability of success given his doubted documents and lack of clean hands. The defendant likewise failed: he sought orders over plot No. 3/339, which was not the subject of the suit, raised no counter-claim, and there was no clear evidence of the plots' position on the ground. Both applications were dismissed, with each party bearing their own costs.

Key legal issues

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01

Whether the Plaintiff established a prima facie case for an injunction

Holding

No prima facie case; the Plaintiff did not come with clean hands and his documents were of doubtful authenticity

Reasoning

The court found the two parties were fighting over one and the same plot despite claiming different plot numbers. The Plaintiff denied being sued in the lower court case but annextures showed he and the defendant in that suit were one and the same person. His ID card showed he was 13 years old in 1991 when he claimed allocation, and other documents showed allocation in 2009. Altered documents had been discredited by the trial magistrate.

p. 2
02

Whether the Defendant was entitled to injunctive and demolition orders

Holding

The Defendant failed to demonstrate a prima facie case as the subject of the suit was plot No. 4/480, he raised no counter-claim, and there was no clear evidence of the position of the plots on the ground

Reasoning

The court noted the defendant sought injunctive orders over plot No. 3/339 while the suit concerned plot No. 4/480. There was no conclusive finding that the ground claimed was not plot No. 3/339. A proposed survey to ascertain the position of the plots on the ground had not taken place because the plaintiff allegedly did not co-operate.

p. 2
03

Whether the true subject matter of the dispute is one plot despite two different plot numbers

Holding

Both parties were litigating over one and the same plot on the ground

Reasoning

The court found that although the parties claimed to be litigating over two separate unregistered plots allocated by the former City Council of Nairobi, the reality was one plot on the ground. The plaintiff was found to be the same person sued in Milimani Chief Magistrate's Civil Case No. 5682 of 2011 over that plot, and had re-entered after a demolition order was executed against him.

p. 1

Legal principles established

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  • An applicant for an injunction must approach the court with clean hands and must demonstrate a prima facie case with probability of success
  • Injunctive relief cannot issue in respect of property the applicant has not counterclaimed over or established a claim to

Court orders

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  1. 1.Both applications dismissed
  2. 2.Each party to bear their own costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (not expressly cited in the ruling)

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, "Boniface Macharia Kamande v Samuel Njoroge Muchiri [2017] KEELC 3443 (KLR)", Case Analysis (2017). Not stated in the judgment (Environment and Land Court suit at Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3443/eng@2017-02-06

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