Jacinta Michengi Njuguna & another v Wawage Investment Company Limited & 5 others [2019] KEELC 4164 (KLR)
The bottom line
#A Kenyan court refused to hand a disputed Ruiru plot to either side, freezing all occupation until the real ownership question is decided at trial.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case
The Applicants established a prima facie case: the 1st Applicant produced a share certificate the 1st Respondent acknowledged issuing, giving her an interest and an arguable case, and her title came first in time
The Court applied the Mrao definition of a prima facie case as a genuine and arguable case showing an apparently infringed right calling for rebuttal. At interlocutory stage the court makes no conclusive findings on contradictory affidavit evidence. The Respondents' claim that the share certificate was issued for visa purposes was a matter for trial. The certificate's existence and the Respondents' acknowledgement sufficed.
Irreparable injury
Damages would not suffice because land is unique; the Applicants had been in occupation and their structures demolished
Relying on Niaz Mohamed Jan Mohamed, the Court held that no amount of money can compensate infringement of a right over land. The Applicants averred possession since 2001 and demolition of a kiosk by the Respondents, so the injury could not adequately be atoned in damages.
Balance of convenience
The balance of convenience did not tilt in the Applicants' favour as they were not currently in possession, and the Respondents also held a share certificate whose authenticity awaits trial
Following Nguruman Ltd v Jan Bonde Nielsen, the Court compared the inconvenience to each party. The Applicants had been dispossessed and were not in occupation, while the 2nd, 4th and 5th Respondents held a competing share certificate yet to be authenticated at trial. Since all three Giella conditions must be satisfied, the application failed and only maintenance of the status quo was appropriate.
Legal principles established
#- In an interlocutory injunction application the applicant must establish a prima facie case with a probability of success, irreparable injury not compensable in damages, and that the balance of convenience tilts in their favour; failure to satisfy all three conditions is fatal
- In an interlocutory application the court makes no conclusive findings of fact or law on contradictory affidavit evidence
- Land is unique and damages may not suffice as a remedy for deprivation of a plaintiff's right over land
Court orders
#- 1.The parties shall maintain the status quo currently prevailing, where none of the parties shall occupy the suit property, until the suit is heard and determined
- Jurisdiction invoked
- Order 40 Rules 1(a) and (b) and Order 51 Rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacinta Michengi Njuguna & another v Wawage Investment Company Limited & 5 others [2019] KEELC 4164 (KLR)", Case Analysis (2019). Notice of Motion dated 10th October 2017 (suit re: Plot No.2 Ruiru, Share Certificate No.183). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4164/eng@2019-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.