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ELCAllowedNotice of motion dated 12th August 2013 (suit plot numbers 10 and 11 Komarock Community Shopping Center)· [2018] KEELC 863 (KLR)

Joseph Kiiru Mugambi & another v Ann Wambui Kariuki & 2 others [2018] KEELC 863 (KLR)

Environment and Land Court / High Court of Kenya at Nairobi
6 November 2018
LKL. Komingoi
748 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court stopped developers from fencing or building on two Komarock plots because the buyers' documents proved their ownership claims were stronger.

What this practically means

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Executive summary

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This judgment determines a notice of motion dated 12th August 2013 brought by the plaintiffs/applicants under Order 40 rules 2(1) and 2(3) of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act, seeking a temporary injunction to restrain the 1st and 2nd defendants from alienating, occupying, fencing, leasing or developing plots 10 and 11 Komarock Community Shopping Center pending the hearing and determination of the suit. The applicants asserted they purchased the plots from the original allottees, Caroline Irungu and Silvester Abura, and held powers of attorney from them, and that the defendants had begun fencing and digging trenches. The 1st and 2nd defendants, served by substituted service, did not enter appearance or respond; the 3rd defendant filed a defence but no response to the motion. The court framed two issues: whether the applicants met the threshold for a temporary injunction, and who should bear costs. Applying the Giella v Cassman Brown principles and the Mrao v First American Bank definition of a prima facie case, the court found the applicants' uncontroverted evidence — allotment letters, agreements, receipts for rates and payments — established a prima facie case with a probability of success, and that they would suffer irreparable loss if construction proceeded. The court granted the temporary injunction as sought, directed the OCS Kayole Police Division to assist in enforcement, and ordered that costs of the application abide the outcome of the main suit.

Key legal issues

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01

Whether the applicants met the threshold for a temporary injunction

Holding

The applicants demonstrated a prima facie case with a probability of success and would suffer irreparable loss; the uncontested evidence of purchase from original allottees sufficed

Reasoning

The court applied the Giella v Cassman Brown principles as restated in Mrao Ltd v First American Bank. The applicants annexed allotment letters, agreements, receipts for rates and statutory charges and payment receipts to the 3rd defendant, which were uncontroverted by the 1st and 2nd defendants, who never entered appearance. The court was satisfied the applicants bought the plots from the original allottees and risked losing them if construction proceeded.

p. 2

Legal principles established

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  • In an application for injunction the onus is on the applicant to satisfy the court that it should grant the injunction, per the Giella v Cassman Brown principles

Court orders

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  1. 1.Temporary injunction restraining the 1st and 2nd defendants/respondents and/or their agents from alienating, occupying, erecting any fence or structure, leasing or letting and/or developing plot numbers 10 and 11 Komarock Community Shopping Center within Komarock Estate pending the hearing and determination of the suit
  2. 2.The Officer Commanding Kayole Police Division to provide assistance in the enforcement of the orders
  3. 3.Costs of the application to abide the outcome of the main suit
Jurisdiction invoked
Order 40 rules 2(1) and 2(3) of the Civil Procedure Rules; Sections 3 and 3A of the Civil Procedure Act

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, "Joseph Kiiru Mugambi & another v Ann Wambui Kariuki & 2 others [2018] KEELC 863 (KLR)", Case Analysis (2018). Notice of motion dated 12th August 2013 (suit plot numbers 10 and 11 Komarock Community Shopping Center). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/863/eng@2018-11-06

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