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ELCDismissedNotice of Motion dated 19th March 2015· [2018] KEELC 3062 (KLR)

Daniel Gitonga Rugu & another v Isaac Rugu Wambugu & another [2018] KEELC 3062 (KLR)

Environment and Land Court
31 May 2018
MOM.C. Oundo
1,350 words in judgment
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The bottom line

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A Kenyan court refused to stop a land sale because the applicants could not prove the land was registered in their names.

What this practically means

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Executive summary

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The Applicants, the son and ex-wife of the 1st Respondent, moved the Environment and Land Court at Nyahururu by Notice of Motion dated 19th March 2015 under Order 40 Rules 1, 2, 8 and 9 of the Civil Procedure Rules and Sections 3A and 63(e) of the Civil Procedure Act, seeking a temporary injunction restraining the Respondents from entering into, disposing of, alienating or dealing with parcels Nyandarua/Melangine/2433 and 2434 pending determination of the suit, plus ancillary enforcement orders through the OCS Melangine. The Applicants alleged proprietorship of the suit lands and apprehended disposal by the 1st Respondent; the 2nd Applicant had placed a caution on the land. Directions were taken for disposal by written submissions; the Applicants neither filed submissions nor attended the highlighting, and the court accepted the Respondents' submissions after confirming service. The Respondents argued the 1st Respondent was the registered proprietor entitled to exclusive possession, the 2nd Applicant lost rights on divorce in 1996, and no prima facie case was established under Giella v Cassman Brown. Examining Sections 24(a), 25(1) and 26(1) of the Land Registration Act, Oundo J found no evidence that the suit lands were registered in the Applicants' names; the parcels arose from sub-division of the 1st Respondent's inheritance, part sold to the 2nd Respondent and part gifted to his children. Holding the Giella conditions sequential, the court declined to consider the remaining conditions and dismissed the application with costs, directed compliance with Order 11 within 21 days, and transferred the case to the Chief Magistrate's Court for hearing and determination.

Key legal issues

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01

Whether the Applicants established a prima facie case for a temporary injunction

Holding

No; no evidence showed the suit lands registered in the Applicants' names, so no prima facie case was established

Reasoning

The court examined the annexures and found no proof of registration in the Applicants' names. The record showed the parcels derived from sub-division of the 1st Respondent's inheritance, part of which he sold to the 2nd Respondent, who was registered as proprietor, and part gifted to his children. Without proprietorship, the Applicants could not demonstrate a prima facie case under Giella v Cassman Brown.

p. 2
02

Whether the other Giella conditions (irreparable harm, balance of convenience) should be considered

Holding

Not necessary; conditions are sequential and failure of the first disposes of the application

Reasoning

Relying on Kenya Commercial Finance Co. Ltd v Afraha Education Society as cited in Joseph Wambua Mulusya v David Kitu, the court held the enquiry is sequential. Having found no prima facie case under Sections 24(a), 25(1) and 26(1) of the Land Registration Act, the court declined to consider the remaining conditions, noting the balance of convenience also tilted against granting the injunction.

p. 2

Legal principles established

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  • The conditions for an interlocutory injunction are sequential; the second condition is only addressed if the first is satisfied
  • Where the first Giella condition fails, the court need not consider the other conditions unless it entertains doubt as to the prima facie case

Court orders

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  1. 1.The application dated 19th March 2015 is dismissed with costs to the Respondents
  2. 2.Parties to comply with the provisions of Order 11 Civil Procedure Rules within the next 21 days upon delivery of the ruling so as to have the matter heard and determined
  3. 3.The case is transferred to the Chief Magistrate's court for hearing and determination
Jurisdiction invoked
Original civil jurisdiction; application under Order 40 Rules 1, 2, 8 and 9 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, "Daniel Gitonga Rugu & another v Isaac Rugu Wambugu & another [2018] KEELC 3062 (KLR)", Case Analysis (2018). Notice of Motion dated 19th March 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3062/eng@2018-05-31

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