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ELCAllowedNotice of Motion dated 23rd January 2014, filed 27th January 2014· [2018] KEELC 3101 (KLR)

Lydia Muthoni Gacharia v Dorothy Wanjiru Ndungu & 2 others [2018] KEELC 3101 (KLR)

Environment and Land Court
24 April 2018
MGMary M. GitumbiSOSamson O. Okong'o
2,867 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Nairobi court stopped an attempted land takeover, ruling that a buyer with proper title documents who holds possession is protected until the case is decided.

What this practically means

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Executive summary

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The Plaintiff, Lydia Muthoni Gacharia, moved the court by Notice of Motion dated 23rd January 2014 seeking a temporary injunction restraining the Defendants from evicting her or dealing with parcel Ngong/Ngong/34366 pending trial. She averred that she purchased the suit property from William Kepaiwua Melonye in February 2006 for Kshs 380,000, was registered as owner on 15th February 2006, and discovered in December 2011 that the property had been fraudulently transferred to the 1st Defendant, Dorothy Wanjiru Ndungu, and then to the 2nd Defendant, Paul Thumbi Kabai. She registered a caution and reported the matter to police. The 1st Defendant claimed to be a bona fide purchaser for value without notice and denied fraud; the 2nd Defendant claimed he bought the property after thorough due diligence, including meeting the Plaintiff before purchase. The Plaintiff denied ever meeting the Defendants or selling the property. The court applied the Giella v Cassman Brown conditions. It found a prima facie case, noting the Plaintiff's documentary evidence and the 1st Defendant's failure to explain how she acquired the property or produce any transaction documents. It held damages inadequate because land is unique and the Plaintiff's right of possession could not be atoned in money. The balance of convenience favoured the Plaintiff, who was in possession. All three Giella conditions having been satisfied, the application was allowed with costs to the Plaintiff, granting the temporary injunction.

Key legal issues

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01

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

Holding

She did, on documentary evidence of her 2006 purchase and registration, while the 1st Defendant gave no account of how she acquired the property

Reasoning

The Plaintiff annexed the sale agreement, land control board consent, transfer and title deed evidencing her 2006 registration. The 1st Defendant claimed bona fide purchase but produced no sale agreement, transfer or consent and did not disclose her vendor. The 2nd Defendant's claim of having met the Plaintiff during due diligence was disbelieved. The court found a genuine and arguable case.

p. 3
02

Whether damages would be an adequate remedy

Holding

Damages would not suffice; land is unique and the Plaintiff holds a clear legal right of possession

Reasoning

Relying on Niaz Mohamed Jan Mohamed and JM Gichanga, the court held that no amount of money can compensate infringement of the right of possession over land, and that damages are not always a suitable remedy where a clear legal right or breach is established.

p. 3
03

Where the balance of convenience lies

Holding

In favour of the Plaintiff, who is in possession of the suit property

Reasoning

The suit property is in the Plaintiff's possession; the 2nd Defendant was reported to be trespassing, which prompted the suit. Applying Nguruman Ltd v Jan Bonde Nielsen, the court found the inconvenience of refusing the injunction to the Plaintiff outweighed that of granting it against the Defendants.

p. 3

Legal principles established

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  • The conditions for an interlocutory injunction are prima facie case with probability of success, irreparable injury not compensable in damages, and balance of convenience
  • A prima facie case is a genuine and arguable case in which a right has apparently been infringed calling for explanation or rebuttal
  • In interlocutory applications the court makes no conclusive findings of fact or law on contradictory affidavit evidence
  • Land is unique and damages are not an adequate remedy for infringement of a right of possession

Court orders

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  1. 1.Temporary injunction restraining the Defendants from evicting the Plaintiff or dealing with parcel Ngong/Ngong/34366 pending hearing and determination of the suit
  2. 2.Application allowed with costs to the Plaintiff

Authorities

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Cases cited (6)

  • Giella v Cassman Brown
    (1973) EA 358
  • Mrao v First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Airland Tours & Travels Ltd v National Industrial Credit Bank
    Milimani High Court Civil Case No. 1234 of 2002
  • Niaz Mohamed Jan Mohamed v The Commissioner of Lands
    (1996) eKLR
  • JM Gichanga v Co-operative Bank of Kenya Ltd
    (2005) eKLR
  • Nguruman Ltd v Jan Bonde Nielsen
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (interlocutory application in a pending suit)

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, "Lydia Muthoni Gacharia v Dorothy Wanjiru Ndungu & 2 others [2018] KEELC 3101 (KLR)", Case Analysis (2018). Notice of Motion dated 23rd January 2014, filed 27th January 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3101/eng@2018-05-03

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