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ELCPartially Allowed· [2017] KEELC 3791 (KLR)

Martin Said Kilonzo Wambua v Njuma Matini James & another [2017] KEELC 3791 (KLR)

Environment and Land Court
11 August 2017
2,451 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused an injunction over disputed Ruai plots but froze all dealings with the land until ownership is decided at trial.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the Court by Notice of Motion dated 28th May 2014 under Order 40 Rules 1, 2, 3 & 9 of the Civil Procedure Rules seeking an interlocutory injunction restraining the Defendants from interfering with, trespassing on, wasting, selling or dealing with Plots Nos. V 11760 and V 4151 at Ruai, Embakasi Ranching Company Limited, pending the hearing of the suit. He claimed he had purchased the plots from the 2nd Defendant and held certificates of plot ownership, and that the 1st Defendant had invaded the land and demolished structures he was erecting. The 1st Defendant opposed, asserting that the suit land comprised Plots P 1647 and P 1648 registered in his name, purchased through one John Njoroge Nguru in 1988, and that he demolished the Plaintiff's structure after the 2nd Defendant's surveyor confirmed the plots were his. The 2nd Defendant, though served, did not enter appearance or respond. Applying the Giella v Cassman Brown conditions and the Mrao definition of a prima facie case, the Court (L. Gacheru, J) found that both parties held ownership documents from the same company over different plot numbers, each claiming the same parcel on the ground, and that the ownership dispute could not be resolved on affidavit evidence but required trial evidence including from the 2nd Defendant and a Government Surveyor. The Plaintiff therefore failed to establish a prima facie case; the conditions being sequential, the other Giella limbs fell away. The injunction (prayer III) was dismissed, but exercising its discretion under prayer IV and guided by the Wambui Ougo status quo principle, the Court ordered preservation of the suit property by restraining both parties from dealing with it in any manner until the suit is determined, and directed compliance with Order 11 within 45 days and fixation of a pre-trial conference.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with probability of success

Holding

No - both parties hold ownership documents from the 2nd Defendant showing different plot numbers yet claim the same parcel, so ownership cannot be ascertained on affidavit evidence

Reasoning

Both parties produced ownership documents from Embakasi Ranching Company, but describing different plot numbers over what each claims is the same parcel on the ground. The ownership dispute requires viva voce evidence including that of the 2nd Defendant and a Government Surveyor. Applying the Mrao definition of a prima facie case, the Plaintiff failed to demonstrate an apparently infringed right, failing the first Giella condition.

p. 5
02

Whether the other Giella conditions needed consideration

Holding

No - the conditions are sequential; failure on the first disposes of the inquiry

Reasoning

Relying on Kenya Commercial Finance Company Limited v Afraha Education Society, the court held the conditions must be addressed sequentially. Since the Plaintiff failed the prima facie case test, there was no reason to consider irreparable loss or balance of convenience.

p. 4
03

What relief is appropriate given the uncertainty

Holding

Preservation of the suit property by restraining both parties from dealing with it until trial

Reasoning

Noting a genuine dispute over ownership, the court found the best alternative was an order preserving the suit property, relying on the Wambui Ougo principle that where there are serious conflicts of fact the trial court should maintain the status quo pending trial.

p. 4

Legal principles established

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  • The conditions for grant of an interlocutory injunction are sequential and the court need not consider later conditions where the applicant fails to establish a prima facie case
  • Where there are serious conflicts of fact, the trial court should maintain the status quo until the dispute is decided at trial

Court orders

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  1. 1.The Notice of Motion dated 28th May 2014 is dismissed in terms of prayer no. III (interlocutory injunction refused)
  2. 2.The application succeeds in terms of prayer No. IV; the suit property (either Plots V 11760 and V 4151 per the Plaintiff or P 1647 and P 1648 per the 1st Defendant's claim) is preserved by restraining the Plaintiff and the 1st Defendant from dealing with it in whatever manner until the suit is heard and determined
  3. 3.The parties are directed to expeditiously prepare the suit for hearing by complying with Order 11 within the next 45 days from the date of the Ruling and then set the matter down for Pre-trial Conference

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2, 3 & 9
  • Civil Procedure ActSection 3, Cap 21 Laws of Kenya
  • Civil Procedure RulesOrder 11

Cases cited (6)

  • David Kamau Gakuru Vs National Industrial Credit Bank Ltd
    Civil Appeal No.84 of 2001
  • Giella Vs Cassman Brown
    1973 EA 358
  • Edwin Kamau Muriu Vs Barclays Bank of Kenya Ltd
    Civil Case No.1118 of 2002
  • Mrao Vs First American Bank of Kenya Ltd & Others
    (2003) KLR
  • Kenya Commercial Finance Company Limited Vs Afraha Education Society & Others
    Civil Appeal No.142 of 1999 (2001) 1 EA 86
  • Virginia Edith Wambui Vs Joash Ochieng Ougo
    Civil Appeal No.3 of 1987 (1987) eKLR
Jurisdiction invoked
Order 40 Rules 1, 2, 3 & 9 of the Civil Procedure Rules, Section 3 of the Civil Procedure Act, Cap 21 Laws of Kenya and all enabling provisions of law

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, "Martin Said Kilonzo Wambua v Njuma Matini James & another [2017] KEELC 3791 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3791/eng@2017-08-11

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