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ELCDismissedNot stated in the judgment as provided· [2019] KEELC 4096 (KLR)

Francis Mbaya Kimani & another v Dominic Njenga Kiruthi & 2 others [2019] KEELC 4096 (KLR)

Environment and Land Court
29 March 2019
LGL. Gacheru
2,044 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to stop construction on disputed Limuru land, holding that injunctions prevent future harm, not undo what has already started.

What this practically means

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Executive summary

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The Plaintiffs/Applicants, administrators of the estates of two women allegedly allotted Plot No.92 Rongai Market, Limuru by the Kiambu County Council in 1967, sought interlocutory injunctions restraining the Defendants from alienating or interfering with land parcel Plot 92/133 Rongai Market pending trial, alleging the 1st Defendant fraudulently and illegally obtained title and began construction in November 2016. The 1st Respondent raised a preliminary objection that the suit disclosed no cause of action and was time barred, and opposed the motion on the basis that his plot, LR No. Limuru Town/133, purchased from Reuben Mbugua Gichana and registered in 1996, was distinct from Plot 92, and that stopping his Kshs.3 million construction would cause irreparable loss. The court, applying Mukisa Biscuits, dismissed the preliminary objection because determining whether a lease was issued would require factual inquiry, and on the Plaintiffs' own averments the cause of action arose only in November 2016, so the suit was not time barred. On the motion, applying the Giella v Cassman Brown criteria, the court held that whether the two plots were one and the same could not be decided at the interlocutory stage, that injunctions address threatened rather than completed events, and that no irreparable loss was demonstrated. Both the preliminary objection and the motion were dismissed, the former with costs in the cause and the latter with costs to the 1st Defendant/Respondent.

Key legal issues

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01

Whether the Preliminary Objection (no cause of action; suit time barred) was merited

Holding

Not merited; determining whether a lease was issued requires ascertaining facts, and on the Plaintiffs' assertion that construction began in November 2016 the suit is not time barred

Reasoning

Applying Mukisa Biscuits, a preliminary objection must rest purely on points of law without ascertaining facts. Determining whether a Certificate of Lease issued requires factual inquiry, so the objection fails. On limitation, the alleged cause arose when the 1st Defendant began construction in November 2016, after the death of the surviving allottee, so the suit is not time barred. Courts strive to sustain rather than summarily dismiss suits.

p. 2
02

Whether the Plaintiffs/Applicants were entitled to an interlocutory injunction

Holding

No; they failed to establish a prima facie case with probability of success or irreparable loss, and the balance of convenience did not arise

Reasoning

Whether Plot 92 Rongai Market and LR No. Limuru Town/133 are one and the same plot is a matter for trial, not interlocutory determination. The 1st Defendant holds a title deed and has commenced construction; injunctions address threatened acts, not completed ones. No evidence showed occupation or irreparable loss, and the court was not in doubt on convenience.

p. 3

Legal principles established

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  • Injunctions issue to prevent threatened events, not events that have already occurred, and a title holder will not ordinarily be restrained at the interlocutory stage absent cogent evidence
  • A suit should not be struck out unless it is plainly obvious and incurable by amendment

Court orders

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  1. 1.Preliminary Objection dismissed entirely with costs in the cause
  2. 2.Notice of Motion dated 11th September 2017 dismissed entirely with costs to the 1st Defendant/Respondent

Authorities

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Cases cited (8)

  • Mukisa Biscuits & Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Quick Quick Enterprises Ltd v Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
  • DT Dobie & Co Ltd v Joseph Mbatia Muchina & Another
    Civil Appeal No.37 of 1988
  • Francis Kamande v Vanguard Electrical Services
    Civil App. No.152 of 1996
  • Nyutu & Others v Gatheru & Others
    (1990) KLR 554
  • Agip (K) Ltd v Maheshchandra Himatlal Vora & Others
    Civil Appeal No.213 of 1999
  • Giella v Cassman Brown & Co. Ltd
    1973 E.A 358
  • Jane Kemunto Mayaka v Municipal Council of Nakuru & Others
    HCCC No.124 of 2005
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (not expressly cited in the judgment)

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, "Francis Mbaya Kimani & another v Dominic Njenga Kiruthi & 2 others [2019] KEELC 4096 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4096/eng@2019-03-29

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