Esther Wambui Kibe v Chuna Housing Co-operative Society Ltd [2018] KEELC 3156 (KLR)
The bottom line
#A Kenyan land buyer who held an ownership certificate and possession won a court order blocking the seller from interfering with her Ngong plot.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success
Yes - the Plaintiff produced a Plot Ownership Certificate and the Defendant did not contest the assertion of purchase
The court applied the Giella test and the Mrao definition of a prima facie case. The Plaintiff asserted she purchased the suit plot and produced a Plot Ownership Certificate; the Defendant did not contest this. The court therefore found she convinced the court she is indeed the owner of the suit plot, while cautioning that findings were interlocutory and not conclusive.
Whether damages would be an adequate remedy
No - damages would not suffice for breach of the Plaintiff's right of possession over the suit property
Relying on Niaz Mohamed Jan Mohamed and JM Gichanga, the court held that land is unique and no one parcel can be equated in value to another. Even though the value of the suit property could be ascertained, damages are not always a suitable remedy where a plaintiff has established a clear legal right or breach.
Where the balance of convenience lies
In favour of the Plaintiff, who is in possession of the suit plot
Applying Nguruman Ltd v Jan Bonde Nielsen, the court compared the inconvenience to each party. Since the party in possession of the suit plot is the Plaintiff, the balance of convenience was found to lie in her favour.
Legal principles established
#- Conditions for grant of interlocutory injunction: prima facie case with probability of success, irreparable injury not compensable in damages, and balance of convenience where in doubt
- Definition of a prima facie case in civil applications
- In interlocutory applications the court makes no conclusive findings of fact or law
- Damages are not a suitable remedy for infringement of a clear right to land; land is unique
Court orders
#- 1.Temporary injunction granted in terms of prayer nos. 2 and 4 restraining the Defendant/Respondent from interfering with, trespassing on, transferring or allocating Plot No. 588 Section B 3035 within Ngong/Kaputiei/3035 pending hearing and determination of the suit
- 2.Costs of the application to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction over land disputes (Environment and Land Court); interim relief sought under civil procedure provisions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Wambui Kibe v Chuna Housing Co-operative Society Ltd [2018] KEELC 3156 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3156/eng@2018-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.