Martha Wangui Gichigi & another v Henry Gitahi Thurura [2017] KEELC 3485 (KLR)
The bottom line
#The High Court in Busia refused to stop occupation of disputed land because the applicants held no title and gave no undertaking to pay damages.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs established a prima facie case for an interlocutory injunction
No prima facie case was established; the plaintiffs are not title holders and the presumption of ownership favours the 2nd defendant who holds registered title
The court noted that the 2nd defendant holds title to the suit land having purchased it from the 1st defendant, while the plaintiffs hold no title. Following Jamin Kiombe Lidodo, an applicant who has not shown title cannot safely be held to have a prima facie case. The fraud alleged largely predates the 2nd defendant's purchase. The plaintiffs also failed to give an undertaking as to damages, which the court treated as an independent ground for refusing the injunction.
The effect of the plaintiffs' failure to give an undertaking as to damages
The failure to give an undertaking as to damages is an obvious disadvantage and bars the grant of an injunction
Relying on Gati v Barclays Bank (K) Ltd, the court held that an undertaking as to damages is one of the criteria for granting an injunction. The plaintiffs, seeking to restrain a registered title holder, gave no such undertaking; instead the 2nd defendant offered one. This omission weighed decisively against the grant of the temporary injunction.
Whether the court should determine the innocent purchaser doctrine vis-à-vis the Land Registration Act at the interlocutory stage
The court declined to resolve the conflicting authorities on whether the Land Registration Act ousts the innocent purchaser principle, as doing so would determine an issue reserved for trial
The court observed that plaintiffs relied on Elijah Makeri Nyaagwa'ra supporting the view that the Land Registration Act neutered the innocent purchaser defence, while the 2nd defendant relied on Shimoni Resort taking a contrary view. Deciding between them would prematurely determine a substantive trial issue, contrary to Shitakha v Mwando and Mbuthia v Jimba Credit Finance Corporation.
Legal principles established
#- An undertaking as to damages is one of the criteria for granting an injunction; where none has been given, an injunction cannot issue
- Where an applicant for an injunction has not shown title to the suit land, it is unsafe to hold that a prima facie case is made
- A court at the interlocutory stage should not decide substantive issues or make final findings of fact, but should weigh the relative strengths of each side's propositions
Court orders
#- 1.The plaintiffs' Notice of Motion dated 28/4/2016 is dismissed with costs
- Jurisdiction invoked
- Sections 3A and 63(e) of the Civil Procedure Act (Cap 21) and Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martha Wangui Gichigi & another v Henry Gitahi Thurura [2017] KEELC 3485 (KLR)", Case Analysis (2017). ELC. NO. 119 OF 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3485/eng@2017-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.