Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in judgment (Notice of Motion dated 28th February 2017)· [2018] KEELC 1427 (KLR)

Bernadette Njeri Kamani Martin Igecha v Fredrick Kibira Ndatho & another [2018] KEELC 1427 (KLR)

Environment and Land Court
9 October 2018
CYC. Yano
1,803 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Mombasa court stopped construction on a disputed Miritini plot, ruling the family's long-standing ownership claim deserved protection until trial.

What this practically means

#

Executive summary

#
This interlocutory ruling of the Environment and Land Court at Mombasa (C. Yano, J) determined a Notice of Motion dated 28th February 2017 by which the plaintiffs, administrators of the estate of the late Dominic Kamami Igecha, sought a temporary injunction restraining the 1st defendant from entering, constructing or interfering with PLOT NO. 274 MIRITINI SITE & SERVICE SCHEME pending hearing of the suit. The plaintiffs traced the deceased's purchase of the plot from the original allottee Hamisi M. Kidanga in 1989, completion of payment in 1993 and a clearance certificate of 1995, and alleged the plot was fraudulently transferred to the 1st defendant, who had begun construction. The 1st defendant opposed, asserting he purchased the plot from Kombo Jumaa Mzee in October 2015 and held a certificate of lease for Mombasa/MN/Block 2/144, and raised a preliminary objection that the plot was not an asset in the confirmed grant, so the plaintiffs lacked capacity to sue. The 2nd defendant filed grounds of opposition. Applying the Giella -vs- Cassman Brown principles as informed by Mrao Ltd and Suliman -vs- Amboseli Resort Ltd, the court held the plaintiffs had established a prima facie case with probability of success, that development of the land would cause loss not quantifiable in damages, and that the balance of convenience favoured the plaintiffs. The court granted the temporary injunction in terms of prayer 3 of the motion, with costs in the cause. The ownership dispute remains for trial.

Key legal issues

#
01

Entitlement to a temporary injunction over the suit plot

Holding

The plaintiffs established a prima facie case with probability of success, potential irreparable loss, and the balance of convenience tilts in their favour; a temporary injunction was granted maintaining the status quo.

Reasoning

The plaintiffs exhibited an agreement/transfer and receipts showing the deceased purchased and paid for the suit plot, while the 1st defendant relied on a 2015 purchase and certificate of lease. Ownership between the competing claimants can only be determined at trial. Preserving the status quo carries the lower risk of injustice pending trial.

p. 2
02

Irreparable damage and balance of convenience

Holding

If the suit land were developed to conclusion the loss to the plaintiffs could not be quantified in damages, and the balance of convenience favours the plaintiffs.

Reasoning

The court found that continued construction of the 1st defendant's commercial building would change the land totally, causing loss not adequately compensable in damages, and that maintaining the current status of the subject matter pending determination safeguards both parties' interests.

p. 2

Legal principles established

#
  • The Giella -vs- Cassman Brown principles govern interlocutory injunctions: prima facie case, irreparable damage, balance of convenience.
  • A prima facie case is one in which a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party.
  • The court is not strictly bound by the three Giella principles and may opt for the lower risk of injustice, including maintaining the status quo.

Court orders

#
  1. 1.Temporary injunction granted in terms of prayer 3 of the notice of motion dated 28th February 2017, restraining the 1st defendant from entering into, constructing on and/or interfering with the plaintiffs' quiet possession and enjoyment of PLOT NO. 274 MIRITINI SITE & SERVICE SCHEME pending the hearing and determination of the application and the suit
  2. 2.Costs of the application to be in the cause

Authorities

#

Legislation

  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 40
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 40 Rules 1(a), 2, 4(1)

Cases cited (4)

  • Giella –vs- Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao Ltd – v – First American Bank of Kenya
    (2003) KLR 125
  • Suliman –vs- Amboseli Resort Ltd
    (2004) eKLR 589
  • Films Rover International
    (1986) 3 ALL ER 772
Jurisdiction invoked
Articles 159 and 40 of the Constitution; Section 3A of the Civil Procedure Act; Order 40 Rules 1(a), 2, 4(1) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Bernadette Njeri Kamani Martin Igecha v Fredrick Kibira Ndatho & another [2018] KEELC 1427 (KLR)", Case Analysis (2018). Not stated in judgment (Notice of Motion dated 28th February 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1427/eng@2018-10-09

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