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ELCPartially AllowedEmbu ELC (suit over land parcel No. Mbeere/Mbita/2192; plaint dated 11th April 2017)· [2018] KEELC 4363 (KLR)

Albert Mwaniki Nyaga v Josphat Nthiga Gaconi & another [2018] KEELC 4363 (KLR)

Environment and Land Court
22 February 2018
1,623 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, registered proprietor of Title No. Mbeere/Mbita/2192, sued for a permanent injunction, eviction of the Defendants, police assistance with eviction, and mesne profits, alleging the Defendants refused to vacate despite demand and that he had signed sale agreements with two buyers. Together with the plaint he filed a notice of motion seeking temporary injunction and eviction orders. The Defendants filed a notice of preliminary objection arguing the motion was defective, res judicata, and tainted by non-disclosure and misrepresentation; no replying affidavit or defence was filed. The court first applied the Mukisa Biscuits test and dismissed the preliminary objection: most grounds required investigation of facts, and the objections alleging defect and incompetence were vague and lacking particulars. On the application, the court accepted the Plaintiff's uncontroverted averments and found a prima facie case with a probability of success under Giella v Cassman Brown. However, the potential loss was purely financial and quantifiable, and no irreparable harm or inability to pay damages was shown, so the second Giella ground failed. Further, the court held that eviction and police-assistance orders mirroring the final relief in the plaint could not issue at the interlocutory stage, as that would dispose of the suit on an application alone, citing its own decision in Faith Karimi Muchangi v Peter Njeru Mvungu. The preliminary objection was dismissed with no order as to costs, and the motion was disallowed with costs in the cause. Y.M. Angima J delivered the ruling at Embu on 22nd February 2018.

Key legal issues

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01

Whether the preliminary objections were proper preliminary objections

Holding

Most objections (res judicata, non-disclosure, misrepresentation) required investigation of facts and were not proper preliminary objections; the defect/incompetence objections were too vague to determine.

Reasoning

Applying the Mukisa Biscuits test, objections requiring ascertainment of facts or particulars are unsuitable for summary determination. The court found the allegations of res judicata, non-disclosure and misrepresentation would need additional particulars and evidence. The objections alleging the motion was defective, incompetent and improperly before the court were vague and ambiguous, with no particulars of the law violated, hence incapable of determination and dismissed.

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02

Whether the Plaintiff established the Giella test for an interlocutory injunction

Holding

A prima facie case was established, but irreparable harm was not: the loss was purely financial and quantifiable.

Reasoning

In the absence of a replying affidavit the Plaintiff's averments stood uncontroverted and he established a prima facie case with a probability of success. However, his intended loss (failure to complete two sale agreements) was monetary and quantifiable, and it was not shown the Defendants could not meet an award of damages, so the second Giella ground failed and the application fell.

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03

Whether eviction orders can issue at the interlocutory stage

Holding

No; such final relief cannot be granted on an application before the hearing of the suit.

Reasoning

The Plaintiff sought the same relief in the plaint (permanently) and in the application (temporarily). Granting eviction and police-assistance orders at the interim stage would effectively conclude the suit on an application alone. The court applied its own prior holding in Faith Karimi Muchangi v Peter Njeru Mvungu to disallow the motion.

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Legal principles established

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  • A preliminary objection must raise a pure point of law on assumed facts and cannot be raised where facts must be ascertained or discretion exercised
  • Interim eviction orders mirroring final relief in the plaint cannot be granted at the interlocutory stage as they would dispose of the entire suit

Court orders

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  1. 1.The Defendants' notice of preliminary objection dated 25th September 2017 is dismissed with no order as to costs
  2. 2.The Plaintiff's notice of motion dated 11th April 2017 is disallowed; costs of the application shall be in the cause

Authorities

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Cases cited (3)

  • Mukisa Biscuits Manufacturing Co Ltd Vs West End Distributors Ltd
    [1969] EA 696
  • Giella Vs Cassman Brown & Co Ltd
    [1973] EA 358
  • Faith Karimi Muchangi & 2 others Vs Peter Njeru Mvungu
    Embu ELC No. 2 of 2017
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcel No. Mbeere/Mbita/2192

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, "Albert Mwaniki Nyaga v Josphat Nthiga Gaconi & another [2018] KEELC 4363 (KLR)", Case Analysis (2018). Embu ELC (suit over land parcel No. Mbeere/Mbita/2192; plaint dated 11th April 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4363/eng@2018-02-22

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