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ELCDismissedNotice of Motion dated 12th November, 2018 (suit number not stated in judgment)· [2019] KEELC 3056 (KLR)

Ambrose Ngenne Musyoka v Felix Musila Mutuku & 6 others [2019] KEELC 3056 (KLR)

Environment and Land Court
31 May 2019
1,163 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer lost his injunction because he had no sale agreement or Land Control Board consent proving his purchase.

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 12th November, 2018 seeking a temporary injunction restraining the Defendants from dealing with land known as Donyo Sabuk/Komarock 1/58676 and 58677 pending the hearing of the suit. The Plaintiff claimed he purchased 22.5 acres in 2005 to be excised from Donyo Sabuk/Komarock Block 1/64, took possession, fenced it and built semi-permanent houses, but that the 1st and 2nd Defendants illegally sub-divided and transferred the land, after which the 4th and 5th Defendants began trespassing and constructing permanent structures. The 1st and 2nd Defendants denied selling the land, asserting they inherited and later transferred it; the 5th Defendant, a body of 107 Nairobi County security employees, showed it purchased and sub-divided parcel 58676 for its members, who are in possession with houses at an advanced stage. Applying the Giella v Cassman Brown principles, the court held the Plaintiff had not established a prima facie case: he annexed no sale agreements and no evidence of Land Control Board consent procured within six months, only photographs of unknown provenance. The court further held that the Plaintiff, having built nothing, would suffer no irreparable injury not compensable in damages, while the 5th Defendant's members were in occupation. The application was dismissed with costs to the Defendants on 31st May, 2019.

Key legal issues

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01

Whether the Plaintiff established a prima facie case

Holding

No - the Plaintiff annexed no sale agreements or Land Control Board consent to evidence his alleged 2005 purchase

Reasoning

The Plaintiff's Supporting Affidavit annexed only photographs of unknown provenance showing a mabati structure. The alleged sale agreements were not annexed, and there was no evidence of Land Control Board consent procured within six months of the alleged purchase. The 5th Defendant, by contrast, produced an official search and mutation form showing registration and transfer of the suit parcels. Without documentary proof of purchase or consent, the Plaintiff failed to demonstrate a bona fide arguable case.

p. 2
02

Whether the Plaintiff would suffer irreparable injury

Holding

No - the Plaintiff had not put up any structures, while the 5th Defendant's members were in possession and had nearly completed houses; any injury is compensable in damages

Reasoning

The 5th Defendant's 107 members had taken possession of sub-divided portions and put up houses at an advanced stage of completion, whereas the Plaintiff had not erected any structures on the land. In those circumstances any harm flowing from refusal of the injunction could be adequately compensated by an award of damages if the Plaintiff ultimately succeeded at trial.

p. 2

Legal principles established

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  • For an interlocutory injunction the applicant must show a prima facie case with probability of success, irreparable injury not compensable in damages, and failing that, the balance of convenience (Giella v Cassman Brown)

Court orders

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  1. 1.Dismissal of the Plaintiff's Notice of Motion dated 12th November, 2018 seeking a temporary injunction
  2. 2.Costs of the application awarded to the Defendants

Authorities

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Legislation

  • Land Control Act (implied through consent requirement)Consent of Land Control Board within six months of purchase

Cases cited (1)

  • Giella vs. Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

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, "Ambrose Ngenne Musyoka v Felix Musila Mutuku & 6 others [2019] KEELC 3056 (KLR)", Case Analysis (2019). Notice of Motion dated 12th November, 2018 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3056/eng@2019-05-31

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