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ELCDismissedNotice of Motion dated 5th July 2017· [2018] KEELC 1709 (KLR)

Erick Musundi v Keith Ngarochi [2018] KEELC 1709 (KLR)

Environment and Land Court
21 September 2018
680 words in judgment
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The bottom line

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A Nairobi land claimant lost his bid to block eviction because he had no documents proving the plot was allocated to him.

What this practically means

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Executive summary

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By a Notice of Motion dated 5th July 2017, the plaintiff sought an interlocutory injunction restraining the defendant from interfering with his use, possession and occupation of Plot Number MII4.1 Umoja Estate, Nairobi, contending that the defunct City Council of Nairobi allocated him the suit property, on which he had erected structures at a cost of Kshs.870,000/=, and that the defendant threatened to demolish them and dispose of the property. He also sought a permanent restraining order, general damages and costs. The defendant opposed, asserting he was allocated the property in 1994, developed the structures himself, and that the plaintiff was his tenant at Kshs.20,000/= monthly rent who stopped paying in April 2017; a Business Premises Rent Tribunal reference and a Milimani Chief Magistrate's Court suit by the plaintiff had both been dismissed. Applying the principles in Giella v Cassman Brown, the court held at the interlocutory stage that the plaintiff had produced no documentary evidence of the alleged allotment, whereas the defendant exhibited a 1994 application for allotment, a beacon certificate, and prior proceedings in which the plaintiff swore he was a tenant. The court found a probable tenancy relationship rather than any legal or beneficial interest in the plaintiff, concluded he failed to demonstrate a prima facie case with probability of success, and dismissed the application with costs to the defendant. The court made no definitive factual findings, reserving those for trial.

Key legal issues

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01

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

Holding

The plaintiff failed to establish a prima facie case because he produced no documentary evidence of the alleged allotment and his own affidavit in prior proceedings indicated he was a tenant

Reasoning

The plaintiff claimed allocation of the suit property in November 2013 but exhibited no documentary proof of allotment. The defendant, by contrast, exhibited a 1994 application for allotment of plots, a beacon certificate, and prior suit papers in which the plaintiff swore he was the defendant's tenant. The court therefore found a probable tenancy relationship, not an interest in the property, and held the plaintiff fell short on the first Giella test.

p. 2
02

Whether an interlocutory injunction should issue

Holding

The application was dismissed for lack of merit since the plaintiff failed the first Giella test and no definitive factual findings were made at the interlocutory stage

Reasoning

Applying the principles in Giella v Cassman Brown, the court confined itself to the materials presented on the interlocutory application without making definitive factual findings. Having found no prima facie case, the court did not proceed to consider irreparable harm or balance of convenience, and dismissed the Notice of Motion dated 5th July 2017 with costs to the defendant.

p. 2

Legal principles established

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  • An applicant for an interlocutory injunction must first demonstrate a prima facie case with a probability of success, then irreparable damage not adequately compensable by damages, with balance of convenience as a fallback where the court is in doubt

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 5th July 2017 is dismissed
  2. 2.Costs of the application awarded to the defendant

Authorities

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Cases cited (1)

  • Giella v Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Original civil jurisdiction over land disputes (Environment and Land Court)

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, "Erick Musundi v Keith Ngarochi [2018] KEELC 1709 (KLR)", Case Analysis (2018). Notice of Motion dated 5th July 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1709/eng@2018-09-21

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