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ELCDismissedNot stated in the judgment

Paul Kariuki Kiragu v [Defendant/Respondent]

Environment and Land Court
19 April 2018
MGMARY M. GITUMBISOSAMSON OKONGO
1,285 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 Nairobi land buyer failed to stop a rival claimant because his paperwork couldn't prove he owned the specific plot both parties claimed.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 24th February 2016 in which the Plaintiff/Applicant, Paul Kariuki Kiragu, sought a temporary injunction restraining the Defendant/Respondent from entering, encroaching upon, trespassing on, alienating or interfering with plot number R 426B Ruai, Nairobi County, and an order requiring the OCS Ruai Police Station to maintain peace and order in observance of the injunction. The Applicant claimed ownership, having purchased the plot in 1982 from Embakasi Ranching Company Ltd, holding a Provisional Letter of Allocation and receipts, and alleged that the Defendant illegally trespassed in 2013 and began building structures. The Defendant countered that she was the lawful allottee of plots V8987 and V8988, evidenced by Non-Member Certificates of Ownership dated 28th January 2009, that she had been in possession and had developed them, and that it was the Plaintiff who had harassed her and destroyed her developments. Applying the Giella v Cassman Brown conditions as expounded in Mrao v First American Bank, the court found that both parties claimed the same land under different plot numbers and that it could not, at the interlocutory stage, ascertain whether the suit property was R426B or V8987 and V8988. The Plaintiff therefore failed to demonstrate a prima facie case with a probability of success. Relying on Kenya Commercial Finance Co. Ltd v Afraha Education Society and Nguruman Ltd v Jan Bonde Nielsen, the court held the Giella conditions to be sequential, so the remaining grounds of irreparable injury and balance of convenience fell away. The application was dismissed with each party bearing their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiff/Applicant has made out a prima facie case with a probability of success to warrant the grant of a temporary injunction

Key legal issues

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01

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

Holding

No - both parties claim the same land under different plot numbers and the court could not, at the interlocutory stage, ascertain the true position

Reasoning

The Plaintiff relied on a Provisional Letter of Allocation dated 28th November 1982 and a confirmation letter of 22nd January 2013 from Embakasi Ranching Company Ltd, claiming plot R426B. The Defendant produced Non-Member Certificates of Ownership dated 28th January 2009 for plots V8987 and V8988, claiming to be in possession and having developed them. Both claim the same land under different numbers, which the court could not resolve at the interlocutory stage. Following Mrao, the Plaintiff therefore failed to show a genuine and arguable case, and since the first Giella condition failed, the application fell to be dismissed without considering irreparable harm or balance of convenience.

p. 2

Legal principles established

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  • The conditions for granting an interlocutory injunction are: a prima facie case with a probability of success; irreparable injury not compensable by damages; and, if in doubt, the balance of convenience
  • The Giella conditions are sequential; failure of the first disposes of the application without considering the others
  • In an interlocutory application the court makes no conclusive findings of fact or law on contradictory affidavit evidence

Court orders

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  1. 1.The Notice of Motion dated 24th February 2016 is dismissed
  2. 2.Each party shall bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MG
majority

Wrote the judgment

SO
majority
Jurisdiction invoked
Inherent jurisdiction of the court to grant interlocutory relief in a pending suit (no specific provision invoked in the judgment)

Relief refused

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Temporary injunction restraining the Defendant/Respondent from entering into, encroaching, trespassing, alienating or interfering with plot number R 426B Ruai, Nairobi County

The Plaintiff failed to demonstrate a prima facie case with a probability of success, being the first and sequentially determinative Giella condition

p. 2

Order that the OCS Ruai police station maintain peace and order in observance of the temporary injunction

The main prayer for temporary injunction failed, and the Giella conditions were sequential so the remaining grounds were not reached

p. 3

Costs

Each party shall bear their own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

At this stage of this suit, the court is not in a position to ascertain whether the suit property is R426B or V8987 and V8988. That being the position, the Plaintiff/Applicant has not succeeded in demonstrating that he has a prima facie case with a probability of success at the main trial.
p. 2Prima facie case - contradictory competing claims to the same plot
Since the Plaintiff/Applicant has failed to prove the first ground in the grounds set down in the celebrated case of Giella versus Cassman Brown, this Honourable Court need not venture into the other grounds.
p. 2Sequential application of the Giella conditions
In light of the foregoing, I hereby dismiss this application. Each party shall bear their costs.
p. 3Final orders - dismissal of the application and costs

Issues in the judgment

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minor

The judgment does not disclose the suit's case number, the Defendant's name, or the precise court (it appears to be the Environment and Land Court but is signed by a 'PRESIDING JUDGE')

minor

Judgment signed by Mary M. Gitumbi on 12th April 2018 but delivered by Samson Okongo on 19th April 2018; the identity/role of the delivering judge is unusual

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, "Paul Kariuki Kiragu v [Defendant/Respondent]", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3089/eng@2018-04-19

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