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ELCDismissedNotice of motion dated 11th April 2016 (suit number not stated)· [2019] KEELC 2258 (KLR)

Richard Muchai Kibathi v Francis Ngige Matathia & another [2019] KEELC 2258 (KLR)

Environment and Land Court
11 July 2019
775 words in judgment
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The bottom line

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A Kenyan court refused to order demolition of structures because the applicant couldn't prove who actually built them, dismissing the injunction application.

What this practically means

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Executive summary

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The 1st defendant, Elizabeth Wanjiru Ngige, co-administrator of the estate of Francis Ngige Matathia, brought a notice of motion dated 11th April 2016 under the Civil Procedure Act, the Environment and Land Court Act and Order 40 of the Civil Procedure Rules. She sought a mandatory injunction compelling the plaintiff to demolish structures on LR No. 14702/31 and 14702/32 at his own expense, a restorative injunction restoring the land to its status before the alleged invasion, a permanent injunction restraining trespass and interference with her ownership, and in default, authority for demolition with government planning and environment departments. The application was supported by her affidavit sworn 11th April 2016 and was not opposed. The court canvassed it by written submissions following directions of 6th December 2016. The applicant argued the plaintiff was in contempt of an enforcement notice issued by the Director of Physical Planning Compliance and Enforcement of the County Government of Nairobi, citing Locabail, Kenya Breweries vs Okeyo and Kamau Muchuha vs The Ripples Ltd. Justice L. Komingoi found the application unmerited: the enforcement notice annexed did not state that the plaintiff was the owner or developer, and the applicant had not demonstrated that the plaintiff entered the land and erected structures. Applying the Locabail test, no special circumstances justified a mandatory injunction. The court noted the application had pended over four years and urged expedition of the main hearing. The motion was dismissed with no orders as to costs.

Key legal issues

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01

Whether the 1st defendant/applicant established a case for a mandatory injunction

Holding

The application was not merited; the applicant failed to demonstrate that the plaintiff entered the land and put up structures, and the enforcement notice did not identify the plaintiff as owner or developer

Reasoning

The court examined the supporting affidavit of Elizabeth Wanjiru Ngige. The enforcement notice of 8th April 2015 annexed as EWN 5 did not state that the owner or developer was the plaintiff. Applying Locabail International Finance vs Agroexport, mandatory injunctions on interlocutory applications require special circumstances and a clear case, none of which were shown. The court also noted the application had been pending over four years and urged expedition of the main hearing.

p. 2
02

Whether the delay in the proceedings warranted directions

Holding

The court noted the application had been pending over four years and directed that the hearing be expedited in the interest of justice

Reasoning

Although the interlocutory application failed, the court observed that justice delayed on interlocutory matters prejudices the suit. It therefore expressed that the main suit should be heard expeditiously so the underlying issues could be resolved conclusively, though it made no formal expedited-hearing order in the final disposition.

p. 2

Legal principles established

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  • A mandatory injunction should not be granted on an interlocutory application in the absence of special circumstances and only in a clear case

Court orders

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  1. 1.The notice of motion dated 11th April 2016 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 63
  • Environment and Land Court Act No. 19 of 2011Sections 13(7)(g), 19(1) and 2
  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3

Cases cited (3)

  • Locabail International Finance vs Agroexport & 2 Others
    [1986] 1 All ER 901
  • Kenya Breweries Ltd vs Okeyo
    [2002] 1 EA 109
  • Kamau Muchuha vs The Ripples Ltd
    [1990-1998] EA 388
Jurisdiction invoked
Sections 1A, 1B, 3A and 63 of the Civil Procedure Act; Sections 13(7)(g), 19(1) and 2 of the Environment and Land Court Act No. 19 of 2011; Order 40 Rules 1, 2 and 3 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, "Richard Muchai Kibathi v Francis Ngige Matathia & another [2019] KEELC 2258 (KLR)", Case Analysis (2019). Notice of motion dated 11th April 2016 (suit number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2258/eng@2019-07-11

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