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ELCDismissedNot stated in judgment· [2018] KEELC 2770 (KLR)

Martha Wambui Mbugua & 3 others v Allan Mwangi Muigai & 5 others [2018] KEELC 2770 (KLR)

Environment and Land Court
19 June 2018
1,817 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 an injunction bid because their own title documents failed to prove the boundary encroachment they were complaining about.

What this practically means

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Executive summary

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This was a Notice of Motion dated 29th November 2012 in which the Plaintiffs, registered proprietors of land parcels known as Thika Municipality/Block 8/120, 121, 166, 167, 168, 169, 170 and 171, sought a temporary injunction restraining the 1st to 3rd Defendants from entering, encroaching on or developing the suit properties, and a mandatory order compelling removal of encroachments, enforceable by the 6th Defendant and the OCS Thika Police Station. The Plaintiffs alleged that the Defendants' Adjacent Parcel (LR 4953/2411) had encroached over 20 metres onto the suit properties, a survey by Development Survey Consultants having so established in 2002, and that the Land Registrar had failed to act. The Defendants denied any common boundary, relying on their Certificate of Title with Deed Plan No. 180988 and a beacon certificate, and noted their hotel, Cravers Grill Limited, had operated on the Adjacent Parcel since before the suit properties were registered. The 6th Defendant denied any role in the alleged encroachment. Applying Giella v Cassman Brown and Mrao v First American Bank, the court examined the Deed Plan annexed by the Plaintiffs and found it showed the Adjacent Parcel sharing boundaries only with LR Nos. 4953/2412, 2413 and 2016 - not the suit properties. Finding no common boundary demonstrated, the court held the Plaintiffs had no prima facie case with probability of success. Relying on Afraha Education Society and Nguruman Ltd v Jan Bonde Nielsen, the court declined to consider the remaining Giella conditions. Both the temporary and mandatory injunctions were refused and the Application was dismissed with costs to the 1st to 3rd Defendants.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case with a probability of success for a temporary injunction

Holding

No - the Deed Plan No. 180988 annexed to the title of the Adjacent Parcel shows it shares boundaries only with LR Nos. 4953/2412, 2413 and 2016, not the suit properties, so no common boundary was demonstrated

Reasoning

The court examined the documents annexed by the Plaintiffs themselves, particularly the title deed for the Adjacent Parcel containing Deed Plan No. 180988. That plan showed the Adjacent Parcel bordered only LR Nos. 4953/2412, 2413 and 2016; the suit properties appeared nowhere on it. The court therefore made a preliminary finding that there was no common boundary between the suit properties and the Adjacent Parcel, so the alleged 20-metre encroachment was not substantiated and the first Giella condition failed.

p. 2
02

Whether the mandatory injunction removing encroachments should issue

Holding

No - declined for the same reasons as the temporary injunction

Reasoning

Having failed the first sequential condition in Giella v Cassman Brown (prima facie case with probability of success), the Plaintiffs could not sustain either the prohibitory or the mandatory injunction. Following Kenya Commercial Finance Co. Ltd v Afraha Education Society and Nguruman Ltd v Jan Bonde Nielsen, the court held that where a prima facie case is not established, the remaining conditions need not be considered.

p. 3

Legal principles established

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  • The Giella conditions for an interlocutory injunction are sequential; if the applicant fails to establish a prima facie case, the court need not consider irreparable injury or balance of convenience
  • In an interlocutory application the court makes no conclusive findings of fact or law

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 29th November 2012
  2. 2.Costs of the Application to the 1st to 3rd Defendants

Authorities

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Legislation

  • Registered Land Act Cap. 300 (now repealed)Not specified

Cases cited (5)

  • Giella vs Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao vs First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Airland Tours & Travels Ltd vs National Industrial Credit Bank
    Milimani High Court Civil Case No. 1234 of 2002
  • Kenya Commercial Finance Co. Ltd vs Afraha Education Society
    (2001) 1 EA 86
  • Nguruman Ltd vs Jan Bonde Nielsen
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over land disputes (not expressly cited in the judgment)

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, "Martha Wambui Mbugua & 3 others v Allan Mwangi Muigai & 5 others [2018] KEELC 2770 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2770/eng@2018-06-21

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