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ELCDismissedNaivasha ELC Case (plaint dated 13th October 2017)· [2018] KEELC 2971 (KLR)

Judy Wangechi Njenga v Mary Wangari Maende [2018] KEELC 2971 (KLR)

Environment and Land Court
22 May 2018
DOD. O. Ohungo
748 words in judgment
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The bottom line

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A Naivasha landowner's bid to stop a burial and block entry onto her land failed because her evidence only covered the burial threat, nothing more.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Naivasha/Moi Ndabi/975, sued by plaint dated 13th October 2017 seeking a permanent injunction against burial of the remains of Stephen Otieno Maende on her land and eviction of the defendant. She simultaneously filed a Notice of Motion seeking temporary injunctions restraining the burial (prayer 5) and restraining the defendant from interfering with, entering or encroaching on the suit property (prayer 6). The application was supported by her affidavit deposing that the deceased had entered the land in February 2017 claiming ownership, later died, and that his family intended to bury him on the property. The defendant did not oppose the application. At the inter partes hearing on 16th November 2017, the plaintiff's counsel confirmed the burial had taken place elsewhere, rendering prayer 5 overtaken by events. The court (Ohungo J) applied the Giella v Cassman Brown test, as clarified in Nguruman Limited v Jan Bonde Nielsen, requiring the three conditions to be met sequentially. Because the supporting affidavit dealt exclusively with the threat of burial and made no allegation of any other interference by the defendant, the court found no prima facie case and dismissed the Notice of Motion. Recognising that a real threat of burial existed when the application was filed, the court made no order on costs. Dated, signed and delivered at Nakuru on 22nd May 2018.

Key legal issues

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01

Whether an interlocutory injunction could issue on prayer 6 of the Notice of Motion

Holding

The application failed at the first Giella stage - no prima facie case with probability of success was established

Reasoning

The court applied the Giella v Cassman Brown test as reinforced in Nguruman Limited v Jan Bonde Nielsen, requiring the applicant to surmount each condition sequentially. The supporting affidavit dealt exclusively with the threatened burial of the deceased on the suit property and made no allegation of entering, ploughing or other interference by the defendant. Without any such accusation, no prima facie case against the defendant could be discerned, so the injunction could not issue and the remaining limbs of the test did not arise.

p. 2
02

Whether prayer 5 (restraint of burial) remained live

Holding

Prayer 5 was overtaken by events as the burial had taken place elsewhere

Reasoning

At the inter partes hearing on 16th November 2017 counsel for the applicant informed the court that the deceased had been buried somewhere else, away from the suit property. The relief sought - restraining burial on Naivasha/Moi Ndabi/975 - was therefore moot and the court declined to grant it.

p. 1

Legal principles established

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  • The three Giella conditions are separate, distinct and logical hurdles to be surmounted sequentially; if a prima facie case is not established, irreparable injury and balance of convenience need not be considered

Court orders

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  1. 1.Notice of Motion dated 13th October 2017 dismissed
  2. 2.No order on costs - plaintiff not condemned to costs because there was a real threat of burial when the application was filed

Authorities

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Cases cited (2)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land parcel Naivasha/Moi Ndabi/975 (dispute over use, occupation and possession of 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, "Judy Wangechi Njenga v Mary Wangari Maende [2018] KEELC 2971 (KLR)", Case Analysis (2018). Naivasha ELC Case (plaint dated 13th October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2971/eng@2018-05-22

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