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ELCDismissedNot stated in the judgment· [2018] KEELC 2795 (KLR)

Leonard Gitau Kirocho v Francis Irungu Njoroge [2018] KEELC 2795 (KLR)

Environment and Land Court
21 June 2018
MGMary M. GitumbiBEBernard Eboso
1,199 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to grant an injunction that would have effectively evicted a long-standing occupier before a full trial.

What this practically means

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Executive summary

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The Plaintiff, Leonard Gitau Kirocho, moved the court by Notice of Motion dated 23rd October 2014 seeking a temporary injunction restraining the Defendant, Francis Irungu Njoroge, from trespassing onto land known as LR Number 27627/65 in Utawala, Nairobi, pending trial. The Plaintiff claimed ownership under a 2005 Letter of Allotment from Kandara Development Company Limited, asserted that the Defendant trespassed in 2010, and relied on a written promise by the Defendant dated 1st September 2010 to vacate within six months, followed by demand letters through his advocate G.M. Muhoro. The Defendant, in a Replying Affidavit sworn 23rd July 2015, countered that the suit property was sold in 1995 to his late grandmother, Margaret Waithira Kimani, by Stephen Njoroge; that he was bequeathed it with the knowledge of the company; and that he has occupied it since 2005 as his only family home, arguing the application sought eviction without a hearing. The court, applying Giella v Cassman Brown and Mrao v First American Bank, and guided by Airland Tours & Travels Ltd v National Industrial Credit Bank, held that it could not make conclusive findings on contradictory affidavit evidence. Noting the Defendant's prolonged occupation - about four years even on the Plaintiff's own account - the court found the injunction sought effectively amounted to eviction at the interlocutory stage, which must await full trial. The application was dismissed with costs in the cause.

Key legal issues

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01

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

Holding

The court found it could not grant the injunction because the relief sought effectively evicted the Defendant at the interlocutory stage; the question must await full trial

Reasoning

The court applied the Giella v Cassman Brown conditions and Mrao's definition of a prima facie case but noted the Defendant had been in occupation for years - about 4 years on the Plaintiff's account, about 9 on the Defendant's. On contradictory affidavit evidence, no conclusive findings of fact could be made. An injunction would operate as an eviction, so the issue was reserved for trial.

p. 2

Legal principles established

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  • In an interlocutory application the court does not make conclusive or definitive findings of fact or law on contradictory affidavit evidence
  • A temporary injunction against a party in long occupation effectively amounts to eviction at the interlocutory stage, which the court will not grant before full trial

Court orders

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  1. 1.The Notice of Motion dated 23rd October 2014 seeking a temporary injunction is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Cases cited (3)

  • GIELLA versus CASSMAN BROWN
    (1973) EA 358
  • MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    (2003) KLR 125
  • Airland Tours & Travels Ltd versus National Industrial Credit Bank
    Milimani High Court Civil Case No. 1234 of 2002
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (suit property LR Number 27627/65, Utawala, Nairobi); specific provision not 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, "Leonard Gitau Kirocho v Francis Irungu Njoroge [2018] KEELC 2795 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2795/eng@2018-06-21

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