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ELCPartially AllowedNot stated in judgment (Plaint filed 8 July 2015)· [2017] KEELC 3530 (KLR)

Joe Mwaura & 4 others v Godfrey Njuguna Githiru & 2 others [2017] KEELC 3530 (KLR)

Environment and Land Court
22 February 2017
1,036 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court protected land buyers from interference, but only for specific plots they could prove they purchased with receipts.

What this practically means

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Executive summary

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The plaintiffs sued the defendants, who traded as Kenya National Hawkers Association (KENAHA), alleging that in 2011 they purchased portions of land out of LR No. 10243/16 and LR No. 10243/24 (Elementaita/Kiriko Farm) through the Kiambogo/Kiriko Farm Project Phase 1, were shown their portions and took possession, but that the defendants later began visiting the land with unknown third parties, raising fears of resale. Together with the plaint, the plaintiffs sought an interlocutory injunction restraining the defendants from dealing with the two parcels pending trial. The defendants opposed through grounds of objection, arguing that the plaintiffs were not registered owners, that the 1st defendant was wrongly enjoined as he was not KENAHA, that KENAHA appeared as the seller in the payment records, that the plaintiffs could not seek an injunction over the whole parent parcels, and that the alleged interference was unsubstantiated. The court found the evidence of purchase sufficient only for specific plots: the 1st plaintiff's commercial Plot No. 31 and plots 177, 150, 151, 155 and 156, and the 3rd plaintiff's Plot 182 (1/4 acre) and Plot 16 (one acre). The 2nd, 4th and 5th plaintiffs demonstrated no purchases, and the 3rd plaintiff's commercial plot was unidentifiable. Noting the absence of a replying affidavit refuting the interference allegations, the court issued an injunction confined to the identified plots pending the hearing and determination of the suit, awarded the applicants the costs of the application, and declined to extend the injunction to the whole of the parent parcels.

Key legal issues

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01

Whether an interlocutory injunction should issue to protect purchasers in possession from interference pending trial

Holding

Yes, but limited to the specific plots shown to have been purchased and possessed by the 1st and 3rd plaintiffs

Reasoning

The court found evidence of purchase of certain plots by some plaintiffs and noted there was no replying affidavit refuting the allegation that the defendants were bringing third parties onto the land. The plaintiffs therefore deserved protection pending trial, but only over the specific plots identified by receipts and allocation, and not over the whole of the parent parcels LR No. 10243/16 and 10243/24.

p. 2
02

Entitlement of each plaintiff to relief based on proof of purchase

Holding

Only plaintiffs who demonstrated purchase of identifiable plots qualified for the injunction

Reasoning

The court examined the supporting affidavit and the receipts displayed. The 1st plaintiff was shown to have been allocated a commercial plot No. 31 and 1/4 acre plots 177, 150, 151, 155 and 156, and the 3rd plaintiff Plot 182 (1/4 acre) and Plot 16 (one acre). The 2nd, 4th and 5th plaintiffs showed nothing, and the 3rd plaintiff's commercial plot was not identifiable, so no orders were made on those.

p. 2
03

Whether the vendors were the defendants or KENAHA

Holding

Unclear whether the plaintiffs purchased from the defendants or from KENAHA, but the receipts appeared issued by KENAHA while the 1st defendant featured in the sale agreements

Reasoning

The court observed that the purchase receipts appeared to have been issued by KENAHA, although the 1st defendant's name featured prominently in the sale agreements and documentation. Counsel for the plaintiffs submitted the three defendants are actually the Association, while defence counsel said the Association is registered, but no proof of registration was shown. The court left the question of enjoining KENAHA to the plaintiffs.

p. 2

Legal principles established

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  • An interlocutory injunction will only issue in respect of specific property whose purchase and possession the applicant has demonstrated, not over entire parent parcels.

Court orders

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  1. 1.An order of injunction restraining the respondents/defendants from entering into any dealings with, or in any way interfering with the possession of the 1st and 3rd plaintiffs, pending the hearing and determination of the suit
  2. 2.The injunction covers, for the 1st plaintiff, commercial Plot No. 31 and plot numbers 177, 150, 151, 155 and 156, and for the 3rd plaintiff, Plot No. 182 (1/4 acre) and Plot No. 16 (one acre)
  3. 3.Costs of the application to the 1st and 3rd plaintiffs
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land

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, "Joe Mwaura & 4 others v Godfrey Njuguna Githiru & 2 others [2017] KEELC 3530 (KLR)", Case Analysis (2017). Not stated in judgment (Plaint filed 8 July 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3530/eng@2017-02-22

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