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ELCDismissedNot stated in the judgment· [2019] KEELC 3003 (KLR)

David Mburu Githere & another v John Peter Kamau Ruhangi & 3 others [2019] KEELC 3003 (KLR)

Environment and Land Court
11 June 2019
BEB M Eboso
1,362 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (B M Eboso J) on a notice of motion dated 26 June 2013 seeking interlocutory temporary injunctions restraining the defendants from selling, alienating, transferring or interfering with LR Number 27/326 (about 2 acres) in Ridgeways Estate, Nairobi, pending the hearing of the main suit. The suit property was surrendered to the City Council of Nairobi as a public utility plot as a mandatory condition for approval of a subdivision of LR 27/8 owned by the plaintiffs and Gumchem Kenya Limited. The plaintiffs alleged that the 1st and 2nd defendants fraudulently procured a title to the plot, charged it to the 3rd defendant, defaulted, and that the 4th defendant was poised to auction it. The 1st and 2nd defendants asserted the plot was duly re-allocated to the 1st defendant by the Council, who then paid the plaintiffs Kshs 6,000,000 and obtained registration. The 3rd and 4th defendants maintained the 1st defendant was the registered proprietor and defaulted on the charge. Applying the Giella v Cassman Brown criteria, the court found the plaintiffs had not established a proprietary interest in the surrendered plot, had not challenged the Council's re-allocation, had not sued the County Government or National Land Commission, and had shown no fraud or complicity by the lender. Damages would adequately compensate them. The application was dismissed with costs in the cause, and directions were issued for filing of bundles within 60 days, the court deploring the six-year delay in disposing of the interlocutory application.

Key legal issues

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01

Whether the plaintiffs established a prima facie case for an interim injunction against the lender and its agents

Holding

They did not; no proprietary interest in the surrendered public utility plot was established and no fraud or complicity by the 3rd defendant was shown

Reasoning

The suit property was surrendered to the City Council as a public utility plot as a condition of subdivision. The plaintiffs did not challenge the Council's re-allocation to the 1st defendant, evidence suggested they were paid Kshs 6,000,000 to forbear any claim, they had not sued the County Government or National Land Commission as custodians, and there was no evidence of fraud or complicity on the 3rd defendant's part.

p. 2
02

Whether damages would be an adequate remedy

Holding

Yes; damages equivalent to the plaintiffs' share in the market value of the suit property would adequately indemnify them

Reasoning

The court held that even if the plaintiffs proved their case at the substantive hearing, compensation in damages could restore them, so no irreparable injury justifying an injunction was demonstrated. This is the second Giella criterion, which the plaintiffs failed to satisfy.

p. 2

Legal principles established

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  • An applicant for an interim injunction must demonstrate a prima facie case with a probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience

Court orders

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  1. 1.The Notice of Motion dated 26/6/2013 is dismissed for lack of merit
  2. 2.Costs of the application shall be in the cause
  3. 3.Parties to file and exchange bound, paginated and indexed bundles containing pleadings, witness statements and evidentiary documents within 60 days to facilitate allocation of a hearing date for the main suit

Authorities

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Cases cited (1)

  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property (Land Reference Number 27/326, Ridgeways Estate, Nairobi)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "David Mburu Githere & another v John Peter Kamau Ruhangi & 3 others [2019] KEELC 3003 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3003/eng@2019-06-11

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