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ELCDismissedNotice of Motion dated 8th August 2016 (suit number not stated in judgment)· [2018] KEELC 3182 (KLR)

Drumvale Farmers Co-operative So. Ltd & 2 others v Koto Housing Kenya Limited & 3 others [2018] KEELC 3182 (KLR)

Environment and Land Court
12 April 2018
MGMARY M. GITUMBISOSAMSON O. OKONG'O
1,726 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to stop construction on a Nairobi plot because the applicants could not prove ownership with title documents.

What this practically means

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Executive summary

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The Plaintiffs, being a company under liquidation and two purchasers who alleged they bought the suit property Nairobi Block 118/1192 from it, moved the court by Notice of Motion dated 8th August 2016 seeking a temporary injunction to restrain the Defendants from encroaching on, trespassing on, constructing on, selling, leasing or otherwise dealing with the suit property pending trial. They alleged that on 25th July 2016 the Defendants, accompanied by police, destroyed a maize plantation, fence and barbed wire and began constructing a water tank on the property. The liquidator of the 1st Plaintiff supported the application, deponing that he had allocated the suit property to the 2nd and 3rd Plaintiffs and the neighbouring parcel Nairobi/Block 118/1193 to the National Police and Kenya Prison Services. The Defendants opposed the application through the Replying Affidavit of Moses Nderitu, CEO of the 1st Defendant, contending that the Plaintiffs had no locus standi since an official search showed a third party as registered owner, that the Defendants occupied the neighbouring parcel 118/1193 as contractors of the Ministry of Land, Housing and Urban Development, and that as agents of a known principal no action lay against them. Applying Giella v Cassman Brown as clarified in Mrao v First American Bank, Airland Tours, Kenya Commercial Finance v Afraha Education Society and Nguruman v Jan Bonde Nielsen, the court found that the Plaintiffs had not established a prima facie case with a probability of success: the only title produced was in the 1st Plaintiff's name, ownership rested on a letter from the liquidator, and the Plaintiffs did not respond to the Defendants' claim to be on the neighbouring parcel. Having failed the first, sequential condition, the court declined to consider irreparable harm or balance of convenience. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

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

Holding

They did not; the only title produced was in the name of the 1st Plaintiff while the 2nd and 3rd Plaintiffs relied only on a letter of allocation from the liquidator, and the Defendants claimed to occupy the neighbouring parcel Nairobi/Block 118/1193, a position the Plaintiffs did not rebut

Reasoning

The court noted the Plaintiffs' ownership claim rested on a letter dated 20th June 2016 from the liquidator and a title in the 1st Plaintiff's name, while an official search showed the registered owner as a third party. The Defendants asserted occupation of the adjoining parcel 118/1193 allocated to the police, and the liquidator's own affidavit confirmed such allocation, leaving a boundary dispute. The Plaintiffs did not respond to that position, so no apparently infringed right calling for rebuttal was shown.

p. 2
02

Whether the remaining Giella conditions (irreparable injury and balance of convenience) should be considered

Holding

No; since the first condition failed, the court did not venture into the other grounds

Reasoning

Applying the sequential approach in Kenya Commercial Finance Co. Ltd v Afraha Education Society and Nguruman Ltd v Jan Bonde Nielsen, where no prima facie case is established, irreparable injury and balance of convenience need no consideration. The application therefore fell to be dismissed on the threshold ground alone.

p. 2

Legal principles established

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  • The conditions for granting an interlocutory injunction are a prima facie case with probability of success, irreparable injury not compensable by damages, and, in doubt, the balance of convenience
  • The Giella conditions are sequential; failure to establish a prima facie case disposes of the application without considering the other conditions
  • In an interlocutory application the court makes no conclusive or definitive findings of fact or law on contradictory affidavit evidence
  • Ownership of land is proved through production of title documents

Court orders

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  1. 1.The Notice of Motion dated 8th August 2016 is dismissed
  2. 2.Each party shall bear their own costs

Authorities

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Legislation

  • Co-operative Society Act (Amended) 2004 (No. 12 of 1997)section 66

Cases cited (5)

  • 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
  • Kenya Commercial Finance Co. Ltd versus Afraha Education Society
    (2001) 1 EA 86
  • Nguruman Ltd versus Jan Bonde Nielsen
    (2014) eKLR
Jurisdiction invoked
Inherent jurisdiction of the court to grant interlocutory relief in a pending land 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, "Drumvale Farmers Co-operative So. Ltd & 2 others v Koto Housing Kenya Limited & 3 others [2018] KEELC 3182 (KLR)", Case Analysis (2018). Notice of Motion dated 8th August 2016 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3182/eng@2018-04-19

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