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ELCAllowedNot stated in the judgment (Notice of Motion dated 8/6/2020, filed 19/6/2020)· [2020] KEELC 1171 (KLR)

John Kamau Muigai & 2 others v Turbo Munyaka Co-operative Society Limited & another [2020] KEELC 1171 (KLR)

Environment and Land Court
23 September 2020
MNMwangi Njoroge
1,701 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kitale court has frozen the sale and development of 31 plots in Munyaka Trading Centre until a dispute over their ownership is fully heard.

What this practically means

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Executive summary

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The plaintiffs, officials/purchasers associated with Munyaka Trading Centre, moved the Environment and Land Court at Kitale by notice of motion dated 8/6/2020 under Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 40 Rules 2 and 4(1) of the Civil Procedure Rules, seeking a temporary injunction and an order maintaining status quo over 31 leases (parcel Nos. Munyaka Trading Centre/13-45 and 88) emanating from the subdivision of MAKUTANO/KAPSARA BLOCK 2/247. They alleged that the defendants procured a mandamus order in Kitale ELC Judicial Review No. 8 of 2016 by fraud, compelling registration of the 31 leases to Turbo Munyaka Co-operative Society Limited, a distinct entity from Munyaka Trading Centre, and that the defendants were disposed to alienate the parcels. The defendants, through the 2nd defendant Onesmus Gichiri Mburu, chairman of the 1st respondent, countered that the society was registered in 1964, purchased I.R. No. 11181, subdivided it in 1990 creating a trading centre plot vested in it for the beneficiaries, and never sold any of parcel 247. Applying the Giella v Cassman Brown test and the Mrao definition of a prima facie case, Mwangi Njoroge J held the plaintiffs had demonstrated a prima facie case since fraud and the subdivision would need trial enquiry, that disposal would cause uncompensable loss, and that the balance of convenience favoured preservation. The court granted a temporary injunction, ordered maintenance of status quo, directed costs in the cause, Order 11 compliance, and mention on 27 October 2020.

Key legal issues

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01

Whether the plaintiffs established a prima facie case with a probability of success

Holding

Yes - the plaintiffs demonstrated a prima facie case as the defendants will need at trial to explain the subdivision of L.R. No. 11181 and the alleged fraud in obtaining the mandamus order

Reasoning

The court applied the Mrao definition of a prima facie case. On the face of the application, the allegations of fraud in procuring the mandamus in Kitale ELC Judicial Review No. 8 of 2016 and the disputed subdivision of the original title raised issues calling for enquiry at trial, so the plaintiffs' claim was not frivolous and justified interim protection.

p. 2
02

Whether the plaintiffs would suffer irreparable loss not compensable by damages

Holding

Yes - if the orders were not granted and the suit properties disposed of, the applicants would suffer loss

Reasoning

The court found that disposal of the suit parcels before trial would cause loss to the plaintiffs, satisfying the second Giella limb. On that basis an interim injunction was the appropriate remedy, and on the balance of convenience the status of the suit property had to be preserved pending full hearing.

p. 2

Legal principles established

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  • The Giella v Cassman Brown test governs applications for temporary injunctions: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt.
  • A prima facie case is one which on the material presented the court concludes there exists a right apparently infringed by the opposite party as to call for an explanation or rebuttal.

Court orders

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  1. 1.Temporary injunction restraining the defendants, their agents or servants from entering, fencing, disposing or dealing with the 31 leases for parcel Nos. Munyaka Trading Centre/13, 15-30, 32, 34-45 and 88 emanating from subdivision of MAKUTANO/KAPSARA BLOCK 2/247 pending hearing and determination of the suit
  2. 2.Order maintaining the status quo - neither party to carry on construction, erect structures, carry out developments or activities, or sell, transfer, lease, charge or otherwise alienate the suit property pending hearing and determination of the suit
  3. 3.Costs of the application shall be in the cause
  4. 4.Plaintiffs to comply with Order 11 of the CPR within 14 days and defendants within 14 days thereafter
  5. 5.Mention on 27th October 2020

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure RulesOrder 40 Rules 1, 2 and 4(1)
  • Civil Procedure RulesOrder 11

Cases cited (2)

  • Giella vs Cassman Brown & Company Limited
    (1973) E A 358
  • Mrao V First American Bank of Kenya Limited
    (2003) eKLR
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A, 63(e) of the Civil Procedure Act and Order 40 Rules 2 and 4(1) of the Civil Procedure Rules

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, "John Kamau Muigai & 2 others v Turbo Munyaka Co-operative Society Limited & another [2020] KEELC 1171 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of Motion dated 8/6/2020, filed 19/6/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1171/eng@2020-09-23

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