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ELCPartially AllowedNot stated in judgment (Notice of Motion dated 30th January 2017)· [2018] KEELC 2681 (KLR)

Jeremiah Mepukori Nairowua v Tumbes ole Roika Katato [2018] KEELC 2681 (KLR)

Environment and Land Court of Kenya
28 June 2018
1,991 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado court kept things as they are on disputed land until trial, protecting a buyer who has lived there since 2006.

What this practically means

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Executive summary

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This was a ruling on the Plaintiff's Notice of Motion dated 30th January 2017, brought under Order 40 of the Civil Procedure Rules and Sections 3A and 63(e) of the Civil Procedure Act, seeking a temporary injunction over land parcel KAJIADO/ELANGATA-WUAS/932. The Plaintiff claimed he purchased 40 acres from the Defendant, paid the full purchase price, and took possession in 2006, but the Defendant refused to transfer the excised portion and had placed a notice of sale inviting third-party buyers. The Defendant, the registered proprietor, denied any valid 2006/2007 agreement, asserting the only valid sale agreement was dated 25th January 2016, which he rescinded for the Plaintiff's breach. He relied on Section 24(a) of the Land Registration Act and on Pleated Industries, Giella v Cassman Brown and John Kirika Kimani. The sole issue was entitlement to a temporary injunction. The court, applying Mrao v First American Bank, found the Plaintiff's decade-long residence on the land and the history between the parties (including a tribunal award quashed in Machakos Judicial Review No. 50 of 2012) established a prima facie case with a probability of success. Applying Nguruman Ltd v Jan Bonde Nielsen, it held the harm was not speculative since the Plaintiff already resided on the land, and found the balance of convenience favoured him. Rather than grant the injunction as sought, the court ordered that the prevailing status quo be maintained pending the hearing and determination of the suit, with costs in the cause, and urged compliance with Order 11.

Key legal issues

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01

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

Holding

Yes - the Plaintiff's occupation of the suit land since 2006 and the history between the parties demonstrated an apparent right requiring explanation from the Defendant

Reasoning

The court noted it was not disputed that the Plaintiff had resided on a portion of the suit land since 2006, denoting an interest in the land he claimed to have purchased and paid for in full. The Defendant had not explained the steps taken to evict the Plaintiff since 2006, and there was a history including a tribunal award later quashed. The court applied the Mrao Ltd definition and could not term the claim baseless; contested issues required viva voce evidence.

p. 2
02

Whether the Plaintiff would suffer irreparable harm not compensable by damages

Holding

Yes - the injuries were not speculative since the Plaintiff had resided on the land from 2006 and faced threatened eviction

Reasoning

Applying Nguruman Ltd v Jan Bonde Nielsen, the court held irreparable harm must not be speculative. Because the Plaintiff had already been residing on the land since 2006 and alleged the Defendant threatened to evict him and resell the land, the harm he demonstrated was actual and not speculative, contradicting the Defendant's submission that damages would suffice.

p. 2
03

Where the balance of convenience lies

Holding

It tilts in favour of the Plaintiff whose rights have been infringed upon

Reasoning

On the evidence presented, the court found the balance of convenience favoured the Plaintiff, whose rights had been infringed by the Defendant's conduct, including placing a notice of sale on the property despite the Plaintiff's claimed purchaser's interest and occupation.

p. 2

Legal principles established

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  • Definition of a prima facie case for purposes of interlocutory injunctions
  • Irreparable harm must be actual, substantial and demonstrable, not speculative

Court orders

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  1. 1.The prevailing status quo be maintained pending the hearing and determination of the suit
  2. 2.Costs will be in the cause
  3. 3.Parties urged to comply with Order 11 and set the suit down for hearing as soon as possible

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1(a)(b), Rule 2(1)(2), Rule 4(1)
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Land Registration ActSection 24(a)

Cases cited (5)

  • Pleated Industries (K) Ltd & Another v Allied Industries Ltd
    (2007) eKLR
  • Griella v Cassman Brown & Company Ltd
    (1973) EA 358
  • John Kirika Kimani & another v Hannah Njeri Ng'anga
    (2006) eKLR
  • MRAO VS FIRST AMERICAN BANK OF KENYA LTD & TWO OTHERS
    C.A CIVIL APPEAL No. 39 of 2002 (2003) K.L.R 125
  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    CA No. 77 of 2012
Jurisdiction invoked
Order 40 Rules 1(a)(b), 2(1)(2), 4(1) of the Civil Procedure Rules; Sections 3A and 63(e) of the Civil Procedure Act

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, "Jeremiah Mepukori Nairowua v Tumbes ole Roika Katato [2018] KEELC 2681 (KLR)", Case Analysis (2018). Not stated in judgment (Notice of Motion dated 30th January 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2681/eng@2018-06-28

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