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ELCDismissed· [2018] KEELC 2409 (KLR)

Bakari Shaban Gakere v Mwana Idd Guchu & 3 others [2018] KEELC 2409 (KLR)

Environment and Land Court of Kenya
12 July 2018
JKJ G Kemei
2,055 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Murang'a court refused to protect a man's land claim because his own paperwork pointed to a different plot than the one he was fighting over.

What this practically means

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Executive summary

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By a Plaint and Notice of Motion both dated 24/8/17, the Plaintiff sought a declaration that he is the rightful owner of Plot No. Mjini/69 in Murang'a County, revocation of its purported sub-division and cancellation of its allocation to the 1st Defendant, and a temporary injunction restraining the Defendants from interfering with the plot pending the suit. He claimed to have purchased the plot from one Ibrahim Mohammed and to have been paying rates to Murang'a County Government. The 1st Respondent claimed he was allocated Plot No. 69 in 1982 when owners near Mumbi Girls High School were relocated to Makadara area, and challenged the authenticity of the succession documents underpinning the Plaintiff's claim. The 2nd and 3rd Respondents opposed, citing the regularisation exercise for Mjini plots and the absence of a prima facie case. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the Court found the Applicant's sale agreement referred to plot No. 45, not 69; the grant in Succession Cause No. 148/2009 was challenged by the Thika court as relating to a different estate; the confirmed grant distributed Plot No. 68; rates receipts and a National Land Commission allotment letter dated 9/6/17 showed the Applicant's plot was No. 68, renamed Murang'a Municipality Block 1/173. No prima facie case, no irreparable injury, and the balance of convenience lay against an injunction. The application was dismissed with costs on 12 July 2018 (J G Kemei, J). The main suit remains pending.

Key legal issues

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01

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

Holding

No prima facie case was established; the Applicant's documents contradicted his claim to Plot No. 69

Reasoning

The sale agreement annexed referred to plot No. 45, not plot No. 69. The confirmed grant in Succession Cause No. 148/2009 distributed Plot No. 68, and the Thika court indicated that cause concerned the estate of Kiarie Karu, not Ibrahim Mohammed. Rates receipts showed the Applicant's plot was No. 68, and an NLC allotment letter dated 9/6/17 allocated him Plot Murang'a Municipality Block 1/173, the new number for old Plot 68. His claim to Plot 69 was therefore doubtful.

p. 3
02

Whether the Applicant would suffer irreparable injury not compensable by damages

Holding

No irreparable injury was demonstrated; the property was capable of valuation and the Applicant had been allotted Plot No. 173

Reasoning

The Court found no evidence of irreparable harm at the prima facie stage. The Applicant had been allocated Plot Murang'a Municipality Block 1/173 by the National Land Commission, and assurances were given that no genuine owner would lose their plot. The properties were capable of being valued should compensation be required, so damages would be an adequate remedy.

p. 3
03

Where the balance of convenience lies

Holding

The balance of convenience tilts against issuance of the interlocutory injunction

Reasoning

The Court was not in doubt and held that declining the injunction best served the interests of the regularisation exercise in Mjini area, particularly given the assurances that no genuine owner would lose their plot and that the Applicant had already been allotted an alternative plot.

p. 3

Legal principles established

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  • The principles for granting an interlocutory injunction are the Giella v Cassman Brown test: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt
  • Definition of a prima facie case in civil applications per Mrao v First American Bank of Kenya Ltd

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 24/8/17 seeking a temporary injunction is dismissed
  2. 2.Costs of the application to the Defendants

Authorities

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Legislation

  • Government Proceedings ActCap 40 (30 days' notice)

Cases cited (2)

  • Giella vs Cassman Brown and Co. Ltd
    (1973) EA 358
  • Mrao vs First American Bank of Kenya Ltd & Two Others
    C.A. No. 39 of 2002 (2003) eKLR
Jurisdiction invoked
Original civil jurisdiction over land disputes (claim over Plot No. Mjini/69, Murang'a County); notice under the Government Proceedings Act Cap 40 sought for leave to sue

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, "Bakari Shaban Gakere v Mwana Idd Guchu & 3 others [2018] KEELC 2409 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2409/eng@2018-07-12

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