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ELCAllowedNot stated in judgment· [2018] KEELC 3156 (KLR)

Esther Wambui Kibe v Chuna Housing Co-operative Society Ltd [2018] KEELC 3156 (KLR)

Environment and Land Court
12 April 2018
997 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was an unopposed Notice of Motion dated 12th February 2016 in which the Plaintiff, Esther Wambui Kibe, sought a temporary injunction restraining the Defendant from interfering with, trespassing on, transferring or allocating Plot No. 588 Section B 3035 within Ngong/Kaputiei/3035 (the suit plot) pending the hearing and determination of the suit. She averred that she purchased the plot from the Defendant and was issued with an Ownership Certificate and a Beacon Certificate, and that in 2011 she found the beacons tampered with, whereupon the Defendant made unreasonable demands on her. The application was unopposed. Applying the Giella v Cassman Brown conditions, the court found the Plaintiff had established a prima facie case: she produced a Plot Ownership Certificate and the Defendant did not contest her assertion of ownership, though the court cautioned its findings were interlocutory. On irreparable injury, relying on Niaz Mohamed Jan Mohamed and JM Gichanga, the court held that land is unique and damages would not adequately compensate for breach of the Plaintiff's right of possession. On balance of convenience, per Nguruman Ltd v Jan Bonde Nielsen, the court found it lay with the Plaintiff as the party in possession. All three conditions having been satisfied, the court allowed the application in terms of prayers 2 and 4 with costs to the Plaintiff. The judgment was signed by Lady Justice Mary M. Gitumbi on 12th April 2018 and delivered by Justice Samson Okongo on 19th April 2018.

Key legal issues

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01

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

Holding

Yes - the Plaintiff produced a Plot Ownership Certificate and the Defendant did not contest the assertion of purchase

Reasoning

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.

p. 2
02

Whether damages would be an adequate remedy

Holding

No - damages would not suffice for breach of the Plaintiff's right of possession over the suit property

Reasoning

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.

p. 2
03

Where the balance of convenience lies

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application to the Plaintiff

Authorities

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Cases cited (6)

  • GIELLA versus CASSMAN BROWN
    (1973) EA 358
  • MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    (2003) KLR 125
  • Airland Tours & Travels Ltd versus National Industrial Credit Bank
    Milimani High Court Civil Case No. 1234 of 2002
  • Niaz Mohamed Jan Mohamed versus The Commissioner of Lands
    (1996) eKLR
  • JM GICHANGA versus CO-OPERATIVE BANK OF KENYA LTD
    (2005) eKLR
  • Nguruman Ltd versus Jan Bonde Nielsen
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction over land disputes (Environment and Land Court); interim relief sought under civil procedure provisions

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, "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.