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ELCDismissedELC Case (Kerugoya) - Notice of Motion dated 16th December 2019· [2020] KEELC 801 (KLR)

Raphael Gachoki Njanguru v Benedict Karagu Ndanju & another [2020] KEELC 801 (KLR)

Environment and Land Court
9 October 2020
ECE.C. Cherono
1,555 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kerugoya refused to stop dealings with two disputed land parcels because the applicant failed to prove a strong case.

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 Kerugoya (E.C. Cherono, ELC Judge) delivered on 9th October 2020 on a Notice of Motion dated 16th December 2019 brought by the plaintiff, acting in person, under Order 40 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. The applicant sought a temporary injunction restraining the defendants from interfering with land parcels INOI/KIAGA/1243 and 1244 (subdivisions of INOI/KIAGA/326), cancellation of the defendants' title deeds, reversion of the parcels to himself, and exhumation and transfer of the defendants' late father's remains to clan land at Kibingo, alleging the land was clan land fraudulently transferred in 1967 and later subdivided. The respondents opposed through grounds of opposition/preliminary objection and a replying affidavit by the 2nd respondent, Susan Muthoni Ndanju, contending the suit was res judicata given prior dismissals in ELC Misc. 20/2014 and CMCC 181/2015 (Kerugoya), that no cause of action was disclosed against them as they derived title through regular transfer from their late father, that no injunction lies against a registered owner, and that the suit was time barred. Applying the Giella v Cassman Brown principles, the court held the applicant had not established a prima facie case with probability of success, nor irreparable injury not compensable by damages, and that the balance of convenience tilted against granting the orders. The Notice of Motion was dismissed with costs in the cause.

Key legal issues

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01

Whether temporary injunction should issue over registered land INOI/KIAGA/1243 and 1244

Holding

Application dismissed on all three Giella limbs

Reasoning

The court applied the Giella v Cassman Brown principles. It found the applicant, who was acting in person, had not demonstrated a prima facie case with probability of success, nor irreparable injury not compensable by damages, and that the balance of convenience tilted against granting the interlocutory orders. The respondents raised weighty preliminary objections including res judicata, citing prior dismissals in ELC Misc. 20/2014 and CMCC 181/2015, which the court noted on the face of the record without determining conclusively.

p. 3

Legal principles established

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  • The Giella test requires a prima facie case with probability of success, irreparable injury not compensable by damages, and, if in doubt, balance of convenience

Court orders

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  1. 1.The Notice of Motion dated 16th December 2019 is dismissed with costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (2)

  • Giella Vs Cassman Brown & Company Limited
    (1973) E.A. 358
  • E.A. Industries vs Trufoods
    (1972) E.A. 420
Jurisdiction invoked
Article 162(2) Constitution / Environment and Land Court Act (inherent jurisdiction of ELC; application brought under Order 40 Rule 1 CPR and Sections 1A, 1B and 3A CPA)

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, "Raphael Gachoki Njanguru v Benedict Karagu Ndanju & another [2020] KEELC 801 (KLR)", Case Analysis (2020). ELC Case (Kerugoya) - Notice of Motion dated 16th December 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/801/eng@2020-10-09

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