Efureith Irima Mbogo v Ibara Mwaniki & 6 others [2020] KEELC 1326 (KLR)
The bottom line
#An Embu court refused a landowner's bid to block dealings with disputed land, finding grazing alone isn't enough—but also refused to dismiss her suit for delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case for an interlocutory injunction
The Plaintiff failed to demonstrate a prima facie case with probability of success; grazing use did not show exclusive possession and no expert report or photographs were exhibited. The holding is provisional and does not bind the trial court.
Applying Giella v Cassman Brown, the court required a prima facie case with a probability of success. The Plaintiff alleged only grazing of livestock on the suit properties without exhibiting photographs or expert reports to show exclusive possession, fencing, or measures to exclude other users. Applying Mrao v First American Bank, the standard is higher than an arguable case. The court also found her indolent, having delayed filing and prosecuting the injunction application, which disentitled her from the equitable remedy.
Whether the suit should be dismissed for want of prosecution
No case for dismissal was made out; delay was not undue given the court's docket prioritisation and Covid-19 scaled-down operations, and no prejudice to the Defendants was demonstrated.
Applying Ivita v Kyumbu, the test is whether the delay is prolonged and inexcusable and whether justice can be done despite it, with the defendant bearing the burden of showing prejudice. The suit was about three years old, but the Embu ELC court only began admitting three-year-old suits for hearing in January 2020, and operations were scaled down from March 2020 due to Covid-19. Further, no evidence of prejudice to the Defendants was adduced.
Costs of the two applications
Costs were made in the cause since both applications failed.
Under the proviso to section 27 of the Civil Procedure Act, costs follow the event and a successful party should ordinarily be awarded costs. Because neither party succeeded in their respective applications, the court found it appropriate to order costs to be in the cause rather than awarding them to either side.
Legal principles established
#- A prima facie case is more than an arguable case and requires sufficient material from which violation of rights can be inferred
- Indolence by a litigant disentitles them from the equitable remedy of injunction
- The test for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay, with the defendant showing prejudice
- Costs follow the event unless the court for good reason directs otherwise
Court orders
#- 1.The Plaintiff's notice of motion dated 15th February 2018 is dismissed
- 2.The 7th Defendant's notice of motion dated 29th May 2020 is dismissed
- 3.Costs of both applications shall be in the cause
- Jurisdiction invoked
- Sections 7, 37 & 38 of the Limitation of Actions Act (Cap. 22) and Order 37 Rules 7 & 19, Order 1 Rule 10(2) & (4), Order 40 Rule 1, Order 17 Rules 1 & 2 of the Civil Procedure Rules; Sections 1A, 1B, 3A & 27 of the Civil Procedure Act (Cap. 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Efureith Irima Mbogo v Ibara Mwaniki & 6 others [2020] KEELC 1326 (KLR)", Case Analysis (2020). Embu ELC Originating Summons dated 11th April 2017 (amended 27th March 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1326/eng@2020-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.