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ELCOtherELC 325 of 2017 (lead file; consolidated with ELC 289 of 2017)· [2018] KEELC 354 (KLR)

Joel Mungai Kimani & 3 others v Henry Macharia Kariuki & 2 others [2018] KEELC 354 (KLR)

Environment and Land Court
4 December 2018
DOD. O. Ohungo
1,363 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to pick a winner between two rival claimants, instead freezing the disputed property so neither side can sell, build on, or alter it until trial.

What this practically means

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Executive summary

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Two consolidated Nakuru ELC suits (ELC 289 of 2017 and ELC 325 of 2017) came before the court by way of competing interlocutory applications heard together on written submissions. In ELC 289 of 2017 Henry Macharia Kariuki, claiming to be the registered owner of Dundori/Lanet Block 5/145 since 6 January 2016, sought an injunction restraining trespass and an eviction order against Patrick Njuguna Kiarie and Patrick Njoroge Kimani. In ELC 325 of 2017 three administrators of the estate of Margaret Wambui Njoroge (deceased), holding a confirmed grant and a title in the deceased's name from 25 June 2007, sought to restrain dealings with the same land, an inhibition, and production of the original register and green card, against Henry, Unilands Sacco and the District Land Registrar Nakuru. Unilands Sacco asserted it had purchased the property from Henry in March 2017. Applying Giella v Cassman Brown as clarified in Nguruman, the court found the ownership and occupation of the property heavily contested and triable, such that neither side demonstrated a prima facie case warranting an injunction against the other. Declining the one-way injunctions and refusing the eviction and discovery orders at the interlocutory stage, the court instead preserved the property generally, invoking paragraph 32 of the ELC Practice Directions: it ordered an inhibition registered against the parcel and restrained all parties mutually from selling, alienating, mortgaging, subdividing, constructing on or damaging it pending trial, with costs of both applications in the cause.

Key legal issues

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01

Whether the applicants satisfied the Giella test for interlocutory injunction

Holding

Neither party established a prima facie case warranting an injunction against the other; ownership and occupation are materially contested

Reasoning

The court applied Giella and Nguruman, holding the conditions are sequential hurdles. Both sides produced competing titles (the deceased registered 25 June 2007; Henry registered 6 January 2016) and neither could establish possession with certainty. With a triable contest on ownership, no prima facie case with probability of success was shown by either side, and injunctive relief in favour of one party would prejudice the other.

p. 2
02

The appropriate interlocutory preservation of contested land

Holding

The court opted for general preservation: an inhibition and mutual restraint on dealing with the land pending trial, consistent with the ELC Practice Directions

Reasoning

Invoking paragraph 32 of the Practice Directions on Proceedings in the Environment and Land Courts, the court held that where parties cannot maintain the status quo by agreement, the judge may order status quo/preservation bearing in mind the overriding interests of justice. Hence the inhibition and mutual restraining order rather than a one-way injunction.

p. 3

Legal principles established

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  • The three Giella conditions are separate, distinct and sequential hurdles; failure of the first (prima facie case) ends the inquiry
  • Where rival claims to land cannot be resolved interlocutorily, the court may preserve the suit property generally rather than grant an injunction in favour of one party

Court orders

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  1. 1.An inhibition be registered against the parcel of land known as Dundori/Lanet Block 5/145 (Kiamunyeki 'A') pending hearing and determination of the consolidated suits
  2. 2.All parties to the consolidated suits restrained, through themselves, their agents, servants, representatives or any other person acting on their behalf, from selling, alienating, mortgaging, subdividing, constructing upon or in any manner damaging the parcel known as Dundori/Lanet Block 5/145 (Kiamunyeki 'A') pending hearing and determination of the consolidated suits
  3. 3.Costs of Notice of Motion dated 8th July 2017 and Notice of Motion dated 3rd August 2017 shall be in the cause

Authorities

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Legislation

  • Gazette Notice No. 5178 - Practice Directions on Proceedings in the Environment and Land Courts, and on Proceedings Relating to the Environment and the Use and Occupation of, and Title to Land and Proceedings in Other Courtsparagraph 32

Cases cited (2)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (implied by Practice Directions on Proceedings in the Environment and Land Courts, Gazette Notice No. 5178, para. 32)

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, "Joel Mungai Kimani & 3 others v Henry Macharia Kariuki & 2 others [2018] KEELC 354 (KLR)", Case Analysis (2018). ELC 325 of 2017 (lead file; consolidated with ELC 289 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/354/eng@2018-12-04

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