Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNotice of motion dated 23rd March 2017· [2018] KEELC 895 (KLR)

Joseph Mathenge Nderitu v Samuel Mwangi Gitau [2018] KEELC 895 (KLR)

Environment and Land Court
7 November 2018
LKL. Komingoi
841 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A Kenyan landowner with a registered title got a court order blocking someone from occupying or interfering with his plots pending full trial.

What this practically means

#

Executive summary

#
This was a notice of motion dated 23rd March 2017 by the plaintiff/applicant, Joseph Mathenge Nderitu, seeking an interlocutory injunction pending the hearing and determination of his suit, restraining the defendant from trespassing on, remaining in occupation of, digging trenches, erecting structures on, alienating or otherwise interfering with parcels P 9161 and P 9162 within Embakasi Ranching Company Limited. The plaintiff claimed to have purchased the plots from Ngeneka Development 1968 group on 20th February 2012 and annexed certificates of ownership. He also sought directions that the OCS Ruai Police Station ensure compliance. The defendant, through M/s Mbiyu Kamau, filed a replying affidavit admitting he had been summoned by the OCS Ruai following the plaintiff's report. The court framed two issues: whether the application met the threshold for a temporary injunction, and costs. Applying Giella v Cassman Brown, Mrao v First American Bank, Njenga v Njenga and Ooko v Barclays Bank, and guided by Section 26 of the Land Registration Act, 2012, the court found the plaintiff's title unchallenged, that the defendant had trespassed, that a prima facie case with probability of success was established, that damages would be inadequate, and that the balance of convenience favoured the plaintiff. The application was allowed in full: a temporary injunction issued, the OCS Ruai was directed to ensure compliance, and costs of the application were ordered to abide the outcome of the main suits.

Key legal issues

#
01

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

Holding

Yes - the plaintiff attached certificates of ownership showing he was registered owner, and the defendant had trespassed on the parcels

Reasoning

The court noted that the plaintiff bought the plots on 20th February 2012 and annexed certificates of ownership. The defendant did not challenge the title; the court applied Section 26 of the Land Registration Act, 2012 holding the title unchallenged. The court found that the defendant's presence on the parcel amounted to trespass, satisfying the Giella test's first limb.

p. 2
02

Whether damages would be an adequate remedy (irreparable harm)

Holding

Yes - the plaintiff would suffer irreparable harm not compensable by damages

Reasoning

The court found that compensation by an award of damages was highly unlikely to be adequate, guided by Ooko v Barclays Bank of Kenya Ltd. The balance of convenience also favoured the plaintiff, who had demonstrated proprietorship rights over the suit parcels.

p. 2

Legal principles established

#
  • An injunction is a discretionary remedy granted on the basis of evidence and sound legal principles

Court orders

#
  1. 1.An order of temporary injunction restraining the defendant by himself and/or acting through his servants and or agents from trespassing, remaining on or continuing in occupation of, digging trenches and putting up structures upon, alienating and/or otherwise dealing or interfering with parcels of land known as P 9161 and P 9162 within Embakasi Ranching Company Limited
  2. 2.The Officer Commanding Station Ruai is directed to ensure compliance of the orders
  3. 3.Costs of this application to abide the outcome of the main suits

Authorities

#

Legislation

  • Land Registration ActSection 26

Cases cited (4)

  • Giella vs Cassman Brown & Company Limited
    [1973] EA 358
  • Mrao Limited vs First American Bank of Kenya Limited
    [2003] KLR 125
  • Njenga vs Njenga
    [1991] KLR 401
  • Ooko vs Barclays Bank of Kenya Limited
    [2002] KLR 394
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a land dispute (application for interlocutory injunction pending hearing of the suit)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Joseph Mathenge Nderitu v Samuel Mwangi Gitau [2018] KEELC 895 (KLR)", Case Analysis (2018). Notice of motion dated 23rd March 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/895/eng@2018-11-07

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