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ELCDismissedNotice of Motion application dated 7th February 2017· [2018] KEELC 1140 (KLR)

Tirus Karuga Githaka & another v David Shimekha Mwashi & 3 others [2018] KEELC 1140 (KLR)

Environment and Land Court
31 October 2018
JOJ.O. Olola
2,049 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed land buyers' bid for an urgent injunction, confirming mandatory injunctions are rarely granted before a full hearing.

What this practically means

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Executive summary

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The Plaintiffs moved the court by Notice of Motion dated 7th February 2017 seeking a mandatory injunction restraining the Defendants from accessing, trespassing on, alienating, fencing, taking possession of, or dealing with six acres carved out of LR No. Lamu/Hindi/Magogoni/518 in Lamu. They claimed to have purchased the six acres from the 1st Defendant under a sale agreement, paying Kshs 450,000 plus Kshs 16,000 for sub-division, only for the 1st Defendant to fraudulently sub-divide the parcel into three portions transferred to the 2nd and 3rd Defendants. The 2nd and 3rd Defendants denied fraud, asserting due diligence and proper purchase. The 1st Defendant denied the agreement as a forgery, asserting a 2009 agreement for one acre, non-payment of the balance within three months, a right to re-sell, and a refund of Kshs 319,000 by cheque which the Plaintiff refused to bank; he later paid Kshs 450,000 pursuant to a Lamu court order. The 4th Defendant, the County Land Registrar Lamu, filed Grounds of Opposition arguing, among other things, that injunctions against the Government are barred by Section 16 of the Government Proceedings Act and that the application failed to meet the injunction threshold. Applying the principles in Kenya Railways Corporation v Thomas Nguti, Kenya Breweries v Washington Okeyo and Nderu, the court held that mandatory injunctions are not normally granted interlocutorily absent special circumstances, found no proof of collusion, and dismissed the application with costs to the Defendants.

Key legal issues

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01

Whether the Plaintiffs were entitled to a mandatory injunction at the interlocutory stage

Holding

The application was dismissed; a mandatory injunction cannot be granted interlocutorily absent special circumstances and a clear case

Reasoning

The court distinguished mandatory from prohibitory injunctions, holding that the former requires positive steps and is more drastic, hence reserved for unusually strong and clear cases or where the defendant attempts to steal a match. The Plaintiffs' claim was disputed: the 1st Defendant denied the sale agreement as a forgery, asserted non-payment of the purchase price, and claimed to have refunded the Plaintiffs. No evidence of collusion by the 2nd, 3rd and 4th Defendants was placed before the court.

p. 3

Legal principles established

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  • A mandatory injunction will not normally be granted on an interlocutory application in the absence of special circumstances, and only in clear cases

Court orders

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  1. 1.The Plaintiffs' application dated 7th February 2017 is dismissed with costs to the Defendants/Respondents

Authorities

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Legislation

  • Government Proceedings ActSection 16

Cases cited (4)

  • Kenya Railways Corporation –vs- Thomas Nguti & 6 Others
    (2009) eKLR
  • Gale –vs- Abbot
    (1862) WLR 748
  • Kenya Breweries Ltd –vs- Washington Okeyo
    (2002) EA 109
  • Nderu –vs- Kenya National Chamber of Commerce and Industry & Another
    (2003) eKLR
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court over land disputes (not expressly stated in the judgment)

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, "Tirus Karuga Githaka & another v David Shimekha Mwashi & 3 others [2018] KEELC 1140 (KLR)", Case Analysis (2018). Notice of Motion application dated 7th February 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1140/eng@2018-10-31

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