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ELCDismissedNot stated in the judgment (Notice of Motion dated 15th September 2015)· [2019] KEELC 1205 (KLR)

John Mwangi Mwacharia v Richard Odiek Ayusa & another [2019] KEELC 1205 (KLR)

Environment and Land Court
9 October 2019
970 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court refused to stop construction on a Kayole plot because the buyer couldn't prove his ownership claim with real documents.

What this practically means

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Executive summary

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This is a ruling on the plaintiff's Notice of Motion dated 15th September 2015, brought under Order 40 rules 1 and 2 and Order 51 rule 1 of the Civil Procedure Rules and Sections 1, 1A, 3 and 3A of the Civil Procedure Act, seeking a temporary injunction to restrain the 1st defendant from constructing on, erecting structures on, or developing Plot No. A3-270, Kayole Nairobi, pending the hearing and determination of the suit. The application was supported by the plaintiff's affidavit and opposed by the 1st defendant's replying affidavit and the 2nd defendant's grounds of opposition. The court canvassed the application by written submissions. The plaintiff asserted that he purchased the plot in 1999 from Charles Ndungu Wambugu, an employee of the City Council of Nairobi who had obtained it under a staff purchase scheme, and that the 1st defendant's continued construction would cause him irreparable damage. The 1st defendant relied on a beacon certificate issued on 10th February 2004 and his possession and permanent structures. The 2nd defendant denied allocating the plot to Charles Ndungu Wambugu and disclaimed any knowledge of the alleged sale agreement. Applying the Giella Cassman Brown principles and the Mrao definition of a prima facie case, the court found that the plaintiff failed to establish a prima facie case with probability of success, since he did not annex the letter of allotment and the 2nd defendant denied the allocation, while the 1st defendant's documents were unchallenged. The balance of convenience favoured the 1st defendant, who was in possession. The application was dismissed with costs ordered to abide the outcome of the main suit.

Key legal issues

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01

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

Holding

The plaintiff failed to establish a prima facie case because he did not annex the letter of allotment from the 2nd defendant to Charles Ndungu Wambugu, and the 2nd defendant denied allocating the plot to him

Reasoning

The plaintiff relied on a sale agreement with Charles Ndungu Wambugu but did not produce the letter of allotment from the 2nd defendant. The 2nd defendant denied allocating the plot to Wambugu and disclaimed knowledge of the sale. The 1st defendant, by contrast, produced a beacon certificate and other documents, which were not challenged. The court was satisfied the 1st defendant is the genuine owner and not a trespasser.

p. 2
02

Where the balance of convenience lies

Holding

The balance of convenience tilts in favour of the 1st defendant, who has the relevant documents and is in possession and has constructed permanent structures

Reasoning

The court found it was not in doubt that the 1st defendant is in possession of the suit property and has put up permanent structures. He annexed all relevant documents including a beacon certificate issued on 10th February 2004, and the plaintiff did not challenge those documents. Possession coupled with documentation favoured refusing the discretionary relief of an interlocutory injunction.

p. 2
03

Whether irreparable damage would ensue absent an injunction

Holding

The court was not satisfied that the plaintiff deserves any protection, given his failure on the first two Giella limbs

Reasoning

Because the plaintiff failed to demonstrate a prima facie case with probability of success and the balance of convenience favoured the 1st defendant, the court found no basis to grant any protective relief. The 1st defendant's possession and permanent structures weighed against the plaintiff's claim of irreparable damage.

p. 2

Legal principles established

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  • In an application for injunction the onus is on the applicant to satisfy the court that it should grant an injunction, applying the Giella Cassman Brown principles and the Mrao definition of a prima facie case
  • An applicant for an injunction must make full disclosure of relevant facts and demonstrate a legal or equitable right requiring protection

Court orders

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  1. 1.The notice of motion dated 15th September 2015 is dismissed
  2. 2.Costs to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1 and 2; Order 51 rule 1
  • Civil Procedure ActSections 1, 1A, 3 and 3A

Cases cited (5)

  • Salome Warware vs George Muna & Another
    [2015] eKLR
  • United Five Company Limited v Hellen Kirumba & Another
    [2013] eKLR
  • Giella Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Kenleb Cons Ltd vs New Gatitu Services Station Ltd & Another
    [1990] KLR 557
Jurisdiction invoked
Order 40 rules 1 and 2, Order 51 rule 1 of the Civil Procedure Rules; Sections 1, 1A, 3 and 3A of the Civil Procedure Act (Chapter 21, Laws of Kenya)

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 Mwangi Mwacharia v Richard Odiek Ayusa & another [2019] KEELC 1205 (KLR)", Case Analysis (2019). Not stated in the judgment (Notice of Motion dated 15th September 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1205/eng@2019-10-09

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