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ELCDismissedNakuru ELC Case of 2017 (Nyeri)· [2018] KEELC 1587 (KLR)

Margaret Chepkemoi Kipkones v Jonathan Pere Ngiria & 2 others [2018] KEELC 1587 (KLR)

Environment and Land Court
5 October 2017
YAJustice Y.M. Angima
734 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost her bid to block rivals from her land because her documents pointed to the wrong plot.

What this practically means

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Executive summary

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By Notice of Motion dated 14th February 2017, the plaintiff sought a temporary order of injunction restraining the defendants from entering, putting up structures on, cultivating or in any other way interfering with her quiet use and occupation of parcel No. Nakuru/Nessuit Settlement Scheme/745 pending final determination of the suit. The application was brought under Order 40 Rules 1 and 2 of the Civil Procedure Rules and supported by her affidavit in which she deponed that she owned and occupied the suit property, relying on an allotment card and a photograph, and accusing the 2nd defendant of invading the property on 7th January 2017 to commence construction of a nursery school which she contended ought to have been built on plot No. 713. The defendants opposed the application through a replying affidavit sworn by the 1st defendant, contending that the plaintiff owned parcel Nakuru/Nessuit/787 and not the suit property, which they asserted belonged to Kapogiek Nursery School since 1996, and that it was the plaintiff who had trespassed onto the land in 2016. The court applied the Giella v Cassman Brown test as recently restated by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen, that the three conditions are separate, distinct and logical hurdles to be surmounted sequentially. On the evidence, the court found that the allotment card relied on by the plaintiff related to plot No. 02134, not the suit property, and that neither the map nor the photograph annexed established her ownership. The court was not persuaded that a prima facie case had been established and dismissed the application with costs to the defendants. The main suit proceeds to full trial.

Key legal issues

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Whether the plaintiff had established a prima facie case with a probability of success to warrant the grant of a temporary injunction

Holding

The plaintiff did not establish a prima facie case. The allotment card she relied on related to plot No. 02134 and not the suit property, and no evidence connected her to the suit property.

Reasoning

The court applied the Giella v Cassman Brown test as reiterated in Nguruman Limited v Jan Bonde Nielsen, where the Court of Appeal held that the three conditions must be surmounted sequentially. The plaintiff's claim was pegged on an allotment card showing plot No. 02134 rather than the suit property, and there was no explanation connecting the two. The map and photograph annexed also failed to support her claim of ownership.

p. 2

Legal principles established

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  • In an application for an interlocutory injunction, the applicant must establish a prima facie case with a probability of success, and if that is not established, irreparable injury and balance of convenience need no consideration.

Court orders

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  1. 1.Notice of Motion dated 14th February 2017 is dismissed with costs to the defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 and 2

Cases cited (2)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land; application brought under Order 40 Rules 1 and 2 of the Civil Procedure Rules

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, "Margaret Chepkemoi Kipkones v Jonathan Pere Ngiria & 2 others [2018] KEELC 1587 (KLR)", Case Analysis (2017). Nakuru ELC Case of 2017 (Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1587/eng@2018-09-27

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