Gabriel Joseph Gatumbi & 2 others v Stephen Nduati Muhinja & 3 others [2018] KEELC 4853 (KLR)

Environment and Land Court

18 January 2018

EOE. O. Obaga

706 words in judgment

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The bottom line

Kenyan landowners who win an injunction but lose their case can be forced to pay the other side monthly damages for every month construction was blocked.

What this practically means

Executive summary

The plaintiffs sued the defendants seeking a permanent injunction against construction on title No. NBI/Block 62/1238, a declaration that its allocation was illegal and the land public land, cancellation of the title, rectification of the register and demolition of any construction. Contemporaneously they obtained, in a ruling by Justice Mbogholi Msagha delivered on 9th February 2011, an interlocutory injunction stopping further construction, and on 16th February 2011 they filed an undertaking as to damages as ordered. The substantive suit never proceeded: after several adjournments occasioned by the plaintiffs' non-attendance, it was dismissed on 21st November 2017 when neither the plaintiffs nor their advocates appeared. The matter then came up for hearing as to the undertaking for damages. The second defendant, through Mr Ochieng, relied on a valuation report by M/s Catenary Valuers dated 25th July 2012 assessing the 75%-complete single storey house as capable of earning Kshs.18,000 per month on completion. Justice E. O. Obaga held that but for the injunction the second defendant would have been earning rent, and entered judgment for the second defendant against the plaintiffs jointly and severally for Kshs.18,000 per month from 1st March 2011 until payment in full, with costs of the suit and interest. The substantive claims over the land were not determined, having been dismissed for non-attendance.

Key legal issues

Enforcement of undertaking as to damages following a dismissed suit

Holding

Judgment was entered for the second defendant against the plaintiffs jointly and severally at Kshs.18,000 per month from 1st March 2011 until payment in full, with costs and interest

Reasoning

The court relied on the valuation report by M/s Catenary Valuers dated 25th July 2012, which assessed the 75%-complete single storey house as capable of attracting a monthly rent of Kshs.18,000 upon completion. Because the injunction obtained by the plaintiffs prevented completion, the second defendant lost that rental income, and the plaintiffs' undertaking as to damages (filed 16th February 2011) made them liable for that loss.

p. 2

Legal principles established

A party who obtains an interlocutory injunction and gives an undertaking as to damages is liable to pay damages where the injunction causes the restrained party demonstrable loss, here assessed on lost rental income per a valuation report

Court orders

1.Judgment entered for the second defendant against the plaintiffs jointly and severally in the sum of Kshs.18,000 per month with effect from 1st March 2011 until payment in full
2.The plaintiffs to pay the costs of this suit
3.Interest on the said amount to be paid to the second defendant

Jurisdiction invoked: Environment and Land Court jurisdiction (Article 162(2)(b) of the Constitution) - suit concerning title to land No. NBI/Block 62/1238; no specific provision cited in the judgment

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Gabriel Joseph Gatumbi & 2 others v Stephen Nduati Muhinja & 3 others [2018] KEELC 4853 (KLR)", Case Analysis (2018). ELC No. 302 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4853/eng@2018-01-18

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