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ELCDismissedNotice of Motion dated 15th June 2020 (suit particulars not stated)· [2020] KEELC 455 (KLR)

James Macharia Mwangi v Salat Ali Omar & another [2020] KEELC 455 (KLR)

Environment and Land Court
30 November 2020
1,478 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nanyuki landowner lost his bid for a court injunction because a surveyor's report proved his plot and the neighbour's plot were separate parcels of land.

What this practically means

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Executive summary

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The Applicant, James Macharia Mwangi, moved the Environment and Land Court at Nakuru by Notice of Motion dated 15th June 2020 seeking an interlocutory injunction to restrain the 1st Respondent from interfering with Uns Residential Plot F Nanyuki pending the hearing of the main suit. The Applicant asserted he was allocated the plot in 1996, and that while a CID inquiry into 'strange happenings' on the plot was ongoing, the Respondent trespassed and began erecting structures. The Respondent opposed the application through a replying affidavit, contending it was incompetent and an abuse of process, and asserting he was the registered lessee of Nanyuki Municipality Block XI/394 (formerly Uns Residential Plot No. 8), allotted in 1992 and occupied exclusively since, with a 2016 District Surveyor's report confirming the two were distinct parcels. Neither party filed submissions as directed, so the Court relied on the affidavits. Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, the Court found no dispute that the plots were distinct and that the Applicant had not established trespass or a prima facie case with a probability of success. Holding the Giella conditions sequential, the Court declined to consider irreparable harm or balance of convenience, citing Kenya Commercial Finance Co. Ltd v Afraha Education Society. The application was disallowed with costs in the cause, but the Court ordered maintenance of status quo until determination of the suit and directed compliance with Order 11 within 21 days for the hearing of the main suit.

Key legal issues

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01

Whether the Applicant established a prima facie case for an interlocutory injunction

Holding

No prima facie case established; the evidence showed the Applicant's plot and the Respondent's plot were distinct parcels

Reasoning

The Court found no dispute that the Applicant was allocated UNS Residential Plot F in 1996 while the Respondent was registered lessee of Nanyuki Municipality Block XI/394 (formerly Uns Residential Plot No. 8) allotted in 1992. The Laikipia District Surveyor's report of 23rd March 2016 confirmed the two were distinct parcels on different ground situations per their respective PDPs. The Applicant could not show the Respondent had trespassed on his plot, so the Court could not grant orders in vain.

p. 2
02

Whether the Court should consider irreparable harm and balance of convenience after failure of the first Giella condition

Holding

No; the conditions are sequential and failure of the first condition precludes consideration of the others

Reasoning

Relying on Kenya Commercial Finance Co. Ltd v Afraha Education Society as cited with approval in Joseph Wambua Mulusya v David Kitu, the Court held the enquiry is sequential: the second condition is only addressed if the first is satisfied. Since no prima facie case was established, the Court declined to consider the remaining conditions, though it noted the exception where the Court entertains doubt on the first condition.

p. 2

Legal principles established

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  • The Giella conditions for an interlocutory injunction are sequential; failure of the first condition (prima facie case) ends the enquiry
  • A prima facie case in a civil application is a genuine and arguable case showing an apparently infringed right calling for explanation or rebuttal

Court orders

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  1. 1.Status quo to be maintained until determination of the case
  2. 2.Parties to comply with Order 11 of the Civil Procedure Rules within 21 days for the hearing of the main suit
  3. 3.Application dated 15th June 2020 disallowed with costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 11
  • Gazette Notice No. 5178/2014 Practice Direction No. 28(k)Practice Direction No. 28(k)

Cases cited (5)

  • Giella –vs- Cassman Brown & Company Ltd
    (1973) EA 358
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Kenya Commercial Finance Co. Ltd –vs- Afraha Education Society
    (2001) IEA 86
  • Joseph Wambua Mulusya –vs- David Kitu & Another
    (2014) eKLR
  • Mugah –v- Kunga
    [1988] KLR 748
Jurisdiction invoked
Environment and Land Court jurisdiction (no specific constitutional/statutory provision stated; Court acting under its practice directions vide Gazette Notice No. 5178/2014 Practice Direction No. 28(k))

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, "James Macharia Mwangi v Salat Ali Omar & another [2020] KEELC 455 (KLR)", Case Analysis (2020). Notice of Motion dated 15th June 2020 (suit particulars not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/455/eng@2020-11-30

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