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ELCDismissedNot stated in judgment (Kakamega ELC application dated 6th April 2016)· [2018] KEELC 4780 (KLR)

John Muigai v Teresia Wambui & 2 others [2018] KEELC 4780 (KLR)

Environment and Land Court
25 January 2018
NMN. A. Matheka
1,311 words in judgment
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The bottom line

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The Kakamega Environment and Land Court refused to stop land dealings because the owner could not show a strong case or harm beyond money damages.

What this practically means

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Executive summary

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The plaintiff/applicant moved the Environment and Land Court at Kakamega by a notice of motion dated 6th April 2016 under Order 40 rules 1 and 2 of the Civil Procedure Rules seeking a temporary injunction restraining the defendants from encroaching upon, cultivating, trespassing on, developing or selling land parcel KAKAMEGA/LUGARI/3313 pending hearing of the application inter partes and the main suit. The applicant, the registered owner of the parcel, acknowledged holding one acre in trust for Lumumba, who had sold it to third parties, and alleged the 1st defendant, his sister, had purported to sell part of the land to the 2nd and 3rd defendants, who had invaded and attempted to erect structures on it. The respondents countered that the land arose from the distribution of the estate of Joseph Mwangi Gitogo, in which the 1st respondent received her own one acre share plus the one acre her husband Julius Lumumba Okumu had bought, entitling them to the whole two-acre parcel; they accused the applicant of bad faith, including uprooting their sugarcane. Applying the Giella v Cassman Brown principles and Mrao Ltd's definition of a prima facie case, the court found the applicant had not demonstrated a prima facie case with probability of success nor irreparable injury not compensable by damages, and that the competing ownership claims required full trial. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the applicant established a prima facie case for an interlocutory injunction

Holding

The applicant failed to establish a prima facie case with a probability of success

Reasoning

The applicant admitted he held the suit land in trust for Lumumba, who had sold one acre to third parties, while the 1st respondent claimed the whole two acres vested in her and her husband through family distribution and succession. The court found these competing claims of ownership and trust could only be resolved at full trial, so no apparent infringement of a right was demonstrated warranting an interlocutory injunction.

p. 3
02

Whether the applicant would suffer irreparable injury not adequately compensable by damages

Holding

The applicant failed to show irreparable injury that damages could not compensate

Reasoning

Applying the Giella v Cassman Brown principles, the court held the applicant had not demonstrated that he would suffer injury which an award of damages could not adequately remedy. Without either a prima facie case or irreparable injury, the application for a temporary injunction could not succeed.

p. 3

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 adequately compensable by damages, and, if in doubt, the balance of convenience

Court orders

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  1. 1.The notice of motion dated 6th April 2016 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1 and 2

Cases cited (2)

  • Giella vs. Cassman Brown
    (1973) EA 358
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 others
    {2003}
Jurisdiction invoked
Order 40 rules 1 and 2 of the Civil Procedure Rules

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, "John Muigai v Teresia Wambui & 2 others [2018] KEELC 4780 (KLR)", Case Analysis (2018). Not stated in judgment (Kakamega ELC application dated 6th April 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4780/eng@2018-01-25

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