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ELCOtherNot stated in the judgment· [2018] KEELC 2933 (KLR)

Moses Mbuthia Githinji v Andrew Mungai Macharia & 2 others [2018] KEELC 2933 (KLR)

Environment and Land Court
17 May 2018
MSMunyao Sila
1,332 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court froze a disputed Naivasha plot, ordering both rival owners to leave it vacant and untouched until the real owner is decided at trial.

What this practically means

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Executive summary

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This was an application for an injunction filed by the plaintiff together with a suit claiming ownership of Unsurveyed Residential Plot No. 130 within Naivasha Township. The plaintiff claimed to have purchased the plot for Kshs. 3 million from Margaret Wanjiku Karanja and others, tracing title through an allotment letter dated 1 May 1991 to the original allottee Gibson Wahome. The 2nd defendant claimed the same plot through an allotment dated 11 March 1982 to Enock Kungu Njogu, from whom her late husband purchased it in 1987; she asserted occupation, payment of rates, and a 2018 letter from the County confirming the plot belonged to her late husband. The 3rd defendant, the County, disclaimed records, averring the property belongs to the National Government and that allocation lay with the Commissioner of Lands or the National Land Commission. The 1st defendant was found to be deceased and his name was struck out. Applying the Giella v Cassman Brown principles, the court found that both parties tabled evidence of good title through different routes, with two allotment letters issued to different persons at different times, and held that title could only be determined after a full hearing. It therefore decided the application on the balance of convenience, holding that preservation of the property as it is best served the parties. The court ordered that pending the hearing and determination of the suit there be no further development or construction on the disputed land, that the property be left vacant and unutilized, and that no party sell, lease, charge or enter into any disposition over it. Costs of the application were made costs in the cause.

Key legal issues

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01

Application of the principles for granting an interlocutory injunction

Holding

The plaintiff did not demonstrate title with sufficient clarity at interlocutory stage; both parties displayed competing allotment letters, so the court could not determine ownership and fell back on the balance of convenience

Reasoning

The court applied Giella v Cassman Brown. It found that both plaintiff and 2nd defendant claim ownership of the same property through different chains from different allottees, with two allotment letters issued to different persons at different times. The court held it unwise to delve deeply into title at that stage since ownership could only be determined after fully hearing the parties, and therefore decided the application on the balance of convenience, favouring preservation of the property as it is.

p. 2
02

Balance of convenience in competing claims to the same land

Holding

The balance of convenience favours preserving the property as it is - vacant, undeveloped and free of dealings - pending trial

Reasoning

Being unable to tell at the interlocutory stage who ought to own and possess the property, the court concluded that the property should be left vacant until the case is heard and concluded, and that parties should not enter into any dealings until finalization of the case.

p. 2

Legal principles established

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  • Injunction applications are assessed on the Giella v Cassman Brown principles: prima facie case with probability of success, irreparable loss, and balance of convenience where the court is in doubt
  • Where two parties claim competing titles to the same land from different allotments, the court should preserve the status of the property rather than resolve title at interlocutory stage

Court orders

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  1. 1.Pending the hearing and determination of the case, no further development or construction of any structures by any of the parties on the disputed land described as Plot No. 130 Naivasha Township or Kabati Extension Residential Plot No. 130
  2. 2.Pending the hearing and determination of the suit, the disputed property be left vacant and unutilized
  3. 3.Pending the hearing and determination of the case, none of the parties should sell, lease, charge, or enter into any disposition over the disputed property
  4. 4.Costs of the application shall be costs in the cause

Authorities

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Cases cited (1)

  • Giella vs Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land

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, "Moses Mbuthia Githinji v Andrew Mungai Macharia & 2 others [2018] KEELC 2933 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2933/eng@2018-05-17

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