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ELCDismissedELC Case (Nairobi), Notice of Motion dated 21/4/2017 in suit instituted 25/4/2017· [2018] KEELC 1409 (KLR)

Peter Maina Ndirangu & 2 others v Danish O Agalloh (sued as the Chairman of Kariobangi South Jua Kali Society) & another [2018] KEELC 1409 (KLR)

Environment and Land Court
11 October 2018
1,821 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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What this practically means

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Executive summary

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The three plaintiffs, self-described plot owners in Kariobangi South Estate Sector VI allotted plots by the defunct City Council of Nairobi, sued Danish O. Agalloh (Chairman of Kariobangi South Jua Kali Society) and the Society, alleging collusion with Nairobi City County Government to downsize their plots from 0.02ha. By notice of motion dated 21/4/2017 they sought interim injunctive relief, an order for production of the Society's registration and membership records, ownership documents and minutes authorising downsizing, and a declaration that subdivisions excised from the suit property vest in the individual initial allottees. The Society, through Mr Agalloh's replying affidavit, countered that the plaintiffs were its own members suing without authority, that downsizing was to accommodate all members, and that the suit duplicated Nairobi ELC Petition No. 1337 of 2016. Applying the Giella v Cassman Brown principles, Eboso J held the interim injunction prayer was spent, and in any event refused relief because, per Okongo J's ruling of 15/9/2017 in the related petition, the subdivision process was complete and an injunction cannot restrain what has already taken place. The production order was refused for want of evidence that records were sought and withheld, and the declaratory prayer was refused as final relief unavailable interlocutorily and against a non-party (the County Government). The motion was dismissed with costs to the respondents, and the court directed the file to be mentioned before Okongo J to consider stay or consolidation of the two suits over the same property.

Key legal issues

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01

Entitlement to interim injunctive relief

Holding

The interim injunction was refused; the guiding principles are those in Giella v Cassman Brown, and on the facts the application failed

Reasoning

The court applied the Giella v Cassman Brown principles requiring a prima facie case with probability of success, irreparable injury not compensable in damages, and, in doubt, a balance of convenience. Prayer 2 sought an interim order only pending interpartes hearing and was spent. Even considered substantively, the related ruling in ELC Petition No. 1337/2016 showed subdivision was complete and allotment letters issued, so restraining orders would serve no purpose and would disrupt the ongoing survey and titling exercise.

p. 2
02

Production of Society records

Holding

Refused because no evidence showed the records had been requested and withheld

Reasoning

The Society's registration and membership records are kept by the Registrar of Societies, and requests for records held by the Society are to be directed to its proper officer. The plaintiffs produced no controverting evidence that the Registrar declined to release the records or that the Society withheld records after a request, so grievances about records should be ventilated in an appropriate forum.

p. 3
03

Final declaratory relief at interlocutory stage

Holding

Refused; final declarations cannot issue as interim relief and cannot bind a non-party

Reasoning

Prayer 5 sought a final declaration annulling the downsizing exercise undertaken by the Nairobi City County Government in conjunction with the Society. Such a final order cannot be granted as an interlocutory remedy. Furthermore, the County Government, whose actions the declaration would annul, is not a party to the suit, so an order could not issue in its absence.

p. 3

Legal principles established

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  • An injunction will not issue to restrain an act that has already been completed
  • A final declaratory order cannot be granted as an interlocutory relief

Court orders

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  1. 1.The notice of motion dated 21/4/2017 is dismissed
  2. 2.The respondent shall have costs of the application
  3. 3.The case to be mentioned before Okongo J to determine whether to stay one of the suits, consolidate the two suits, or issue other appropriate directions

Authorities

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Legislation

  • Societies Act

Cases cited (1)

  • Giella v Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land within Kariobangi South Estate, Nairobi

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, "Peter Maina Ndirangu & 2 others v Danish O Agalloh (sued as the Chairman of Kariobangi South Jua Kali Society) & another [2018] KEELC 1409 (KLR)", Case Analysis (2018). ELC Case (Nairobi), Notice of Motion dated 21/4/2017 in suit instituted 25/4/2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1409/eng@2018-10-11

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