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ELCPartially Allowed· [2018] KEELC 1177 (KLR)

David Mbugua Njenga & another v Emmanuel Kazungu Mahsa & 2 others [2018] KEELC 1177 (KLR)

Environment and Land Court
16 October 2018
2,101 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Nairobi's Environment and Land Court froze all building and interference on a disputed Umoja plot after finding evidence of possible double allocation, pending full trial.

What this practically means

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Executive summary

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This is a ruling on an amended notice of motion dated 20th January 2016 brought by the plaintiffs/applicants under Order 40 and Order 51 of the Civil Procedure Rules 2010 and Sections 1A & B, 2, 3A and 63(c) of the Civil Procedure Act, seeking a temporary injunction over Plot No. A 258 Umoja Innercore, Sector II, also known as Block 83/14/358, Nairobi. The plaintiffs claimed to have bought the plot from John Gateri on 2nd March 1995, annexed a sale agreement, an assignment, Nairobi City Council letters and rate receipts and a beacon certificate, though they never completed the transfer. All three defendants opposed: the 1st defendant said no wrong was attributed to him; the 2nd defendant (the County) said the plaintiffs were illegal occupants and lacked locus standi, the 3rd defendant being the registered owner; the 3rd defendant claimed to be an innocent purchaser for value who had invested heavily in development. All defendants relied on Giella vs Cassman Brown and Mrao Ltd vs First American Bank. Framing two issues - whether the application met the injunction threshold and costs - the court applied Giella, Mrao, Njenga vs Njenga, Kenleb Cons and Ooko vs Barclays Bank. It found the plaintiffs had shown a prima facie case with probability of success, noting the dispute could be a double allocation; that they would suffer irreparable harm given the ongoing construction; and that the balance of convenience favoured them. The court granted a temporary injunction restraining the defendants from interfering with the plaintiffs' structures, stopped any construction pending trial, and ordered costs of the application to abide the outcome of the main suit. Judgment delivered by L. Komingoi, J, in Nairobi on 16th October 2018.

Key legal issues

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01

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

Holding

Yes. The plaintiffs produced a sale agreement, assignment from John Gateri, rate payment receipts and a beacon certificate; the court found a possible double allocation justifying preservation of the property pending trial.

Reasoning

The plaintiffs bought the suit plot from John Gateri in 1995 and annexed a sale agreement, letters from the Nairobi City Council confirming the original allottee paid for the plot in full, an assignment, rate receipts and a beacon certificate. The 1st defendant claimed allocation in 1994 with a lease certificate only issued in 2014. The court found this could be double allocation, to be resolved at trial, and that the plaintiffs had a genuine and arguable right requiring protection.

p. 3
02

Whether the plaintiffs demonstrated irreparable harm and balance of convenience

Holding

Yes. The 3rd defendant had conceded he was undertaking developments on the property, and the plaintiffs risked losing it; the balance of convenience favoured the plaintiffs.

Reasoning

The court relied on Ooko vs Barclays Bank and found the plaintiffs would suffer irreparably if orders were not granted, since the 3rd defendant admitted undertaking developments on the suit property and the plaintiffs risked losing it. It further held the balance of convenience tilted in favour of the plaintiffs, and that preservation of the suit property was necessary pending the hearing and determination of the suit.

p. 3

Legal principles established

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  • An applicant for an interlocutory injunction bears the onus of satisfying the court that it should be granted, per Giella vs Cassman Brown
  • What constitutes a prima facie case in civil applications
  • An injunction being a discretionary remedy is granted on the basis of evidence and sound legal principles (Njenga vs Njenga)
  • An applicant for injunction must make full and frank disclosure and show a legal or equitable right requiring protection (Kenleb Cons Limited)

Court orders

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  1. 1.A temporary injunction restraining the defendants/respondents, their agents, servants, employees and/or representatives from trespassing onto, erecting and/or constructing illegal structures, alienating, demolishing, disposing of or otherwise interfering with the plaintiffs'/applicants' building structures on PLOT NO. A 258 UMOJA INNERCORE SECTOR II also known as BLOCK 83/14/358 within Nairobi, pending the hearing and determination of the suit
  2. 2.Any construction on the suit premises known as PLOT NO. A 258 UMOJA INNERCORE, SECTOR II also known as BLOCK 83/14/358 within Nairobi be and is hereby stopped until the hearing and determination of the suit
  3. 3.Costs of the application to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40 Rules 1, 2, 3 and 4; Order 51 Rule 1
  • Civil Procedure Act Cap 21 Laws of KenyaSections 1A & B, 2, 3A and 63(c)
  • Land Registration Act, 2012Section 26

Cases cited (6)

  • Giella vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Njenga vs Njenga
    [1991] KLR 401
  • Kenleb Cons Limited vs Gatitu Services Station Limited & Another
    [1990] KLR 557
  • Ooko vs Barclays Bank of Kenya Limited
    (2002) KLR 394
  • Mary Syevutha Peter vs Abdulrahim Kassim Jaffer & 2 Others
    [2012] eKLR
Jurisdiction invoked
Order 40 Rules 1, 2, 3 and 4 and Order 51 Rule 1 of the Civil Procedure Rules 2010; Sections 1A & B, 2, 3A and 63(c) of the Civil Procedure Act Cap 21 Laws of Kenya

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, "David Mbugua Njenga & another v Emmanuel Kazungu Mahsa & 2 others [2018] KEELC 1177 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1177/eng@2018-10-16

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