Mary Wambui Nganga, Joyce Wambui Nganga & Nicholas Ndungu Nganga v Susan Wambui Njenga, annah Wanjiru Kirui, Joseph Kiiru Mwai, Rufus Tirus Nganga, David Ndungu Gachiri, Peter Mungai Mwathi, John Mwaniki Kabue, Peter Kirui Gicheru & National Land Commission (Environment & Land Case 7 of 2019) [2019] KEELC 1766 (KLR)
The bottom line
#A Kenyan land dispute court ordered both sides to keep things as they are and froze compensation payments until the real ownership fight is decided at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established a prima facie case with a probability of success
The Plaintiffs' claim over the suit land is not baseless as they hold a title deed, but the Defendants also hold certificates of title, so the claim is contestable and the court looked to the other Giella conditions
The court observed that both the Plaintiffs and the 1st to 8th Defendants hold documents of title to their respective parcels. The main contention is the acreage of the parcels. While the Plaintiffs' claim is not baseless, the Defendants' long occupation and titles meant the prima facie case stage alone could not justify the injunction, and the court moved to consider the remaining hurdles.
Whether the balance of convenience favours granting the interim injunction
Balance of convenience favours maintenance of the prevailing status quo, not an injunction in favour of the Plaintiffs
The court found the Defendants have been in occupation of their respective portions for long periods ranging from 8 to 45 years without interference from the Plaintiffs. Given the competing titles and the doubt as to the adequacy of damages, the balance of convenience favoured preserving the prevailing state of affairs until trial.
Whether a mandatory injunction to pull down structures should issue at the interlocutory stage
Refused; no special circumstances exist and the Land Registrar's Ruling underpinning the claim has been stayed in judicial review proceedings
Citing Kenya Breweries Ltd v Washington Okeyo, the court held a mandatory injunction is granted interlocutorily only in special circumstances or where the case is clear. Here the Land Registrar's Ruling of 16th July 2018 was disputed, some Defendants denied knowledge of those proceedings, and the Ruling had been stayed by the Court in ELC Miscellaneous No. 62 of 2018.
Legal principles established
#- The three Giella v Cassman Brown conditions are separate, distinct and logical hurdles to be surmounted sequentially in injunction applications
- A mandatory injunction will not normally be granted at the interlocutory stage in the absence of special circumstances
- Where parties hold competing titles and one has allowed long occupation without interference, the balance of convenience favours maintenance of the status quo pending trial
Court orders
#- 1.The obtaining status quo be maintained where each party is directed not to interfere with any other parties' respective parcels of land by transferring and or charging the same pending the outcome of the suit
- 2.The National Land Commission be and is hereby restrained from releasing the sums computed for the compensation funds to any of the 1st to 8th Defendants in respect of the land parcel numbers Ngong/Ngong/17431; 17432; 17433; 17434; 33373; 33374; 33375; 3936 and 4349 pending the outcome of the suit
- 3.The costs will be in the cause
- Jurisdiction invoked
- Article 40 of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rule 1(a); Order 51 Rules 1 and 2 of the Civil Procedure Rules; Sections 25, 26 and 101 of the Land Registration Act; Section 150 of the Land Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Wambui Nganga, Joyce Wambui Nganga & Nicholas Ndungu Nganga v Susan Wambui Njenga, annah Wanjiru Kirui, Joseph Kiiru Mwai, Rufus Tirus Nganga, David Ndungu Gachiri, Peter Mungai Mwathi, John Mwaniki Kabue, Peter Kirui Gicheru & National Land Commission (Environment & Land Case 7 of 2019) [2019] KEELC 1766 (KLR)", Case Analysis (2019). Notice of Motion dated 23rd January 2019 (ELC suit, Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1766/eng@2019-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.