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ELCAllowedNot stated in the judgment (suit number not reproduced in the text provided)· [2020] KEELC 1697 (KLR)

Rose Wangari Ndungu & another (Suing on their own behalf and for their own benefit and on behalf of and for the benefit of the Estate of the late Stanley Ndungu Njoroge) v Catherine Njeri & another [2020] KEELC 1697 (KLR)

Environment and Land Court
16 July 2020
4,546 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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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 Thika (L. Gacheru, J) on a Notice of Motion dated 21st March 2019 by the 2nd Defendant to the counterclaim, Steluc Limited, seeking temporary mandatory injunctions compelling the 1st Defendant to vacate land parcel DAGORETTI/RIRUTA/6213, a time frame for vacating, eviction upon default, police supervision of enforcement, and costs. The Applicant, a purchaser from the Plaintiffs (administrators of the estate of Stanley Ndungu Njoroge and confirmed as registered proprietors by earlier rulings of 23rd May 2017 and October 2018), complained that the 1st Defendant, despite service of injunction orders, refused to vacate and continued construction on the land, and that its process server was attacked when serving orders. The 1st Defendant opposed, arguing that title had not been finally determined, that she had occupied the land for over 30 years, that the Applicant bought with knowledge of her occupation, and that the matters belonged at the full hearing. The Plaintiffs supported the application. The court applied the Giella v Cassman Brown principles and the special-circumstances test for mandatory injunctions from Locabail and Kenya Breweries v Okeyo. It found the Applicant, as registered owner, had established a prima facie case with probability of success and risk of irreparable harm, and that the 1st Defendant's continued construction in violation of court orders was an attempt to steal a march, constituting special circumstances. The application was allowed entirely in terms of Prayers 3, 5, 6 and 7, with 45 days given to comply, failing which Prayer 6 could be enforced; costs of the application were awarded to the 2nd Defendant against the 1st Defendant.

Key legal issues

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01

Whether the 2nd Defendant established a prima facie case and irreparable harm warranting a temporary mandatory injunction

Holding

Yes. As registered owner of the suit property, the Applicant established a prima facie case with probability of success; continued construction by the 1st Defendant in violation of court orders put the Applicant at risk of irreparable harm not compensable in damages.

Reasoning

The court applied the Giella v Cassman Brown principles. The Applicant's registration as proprietor gave it apparent rights that the 1st Defendant's continued occupation and development infringed. The court found the Applicant at risk of losing the substratum of its case if developments continued contrary to the existing orders, satisfying the irreparable harm limb. The balance of convenience limb was unnecessary since the court was not in doubt.

p. 4
02

Whether special circumstances existed to justify a mandatory (as opposed to prohibitory) injunction at the interlocutory stage

Holding

Yes. The 1st Defendant's continued construction on the suit property contrary to the existing court orders amounted to stealing a march on the Applicant, and her actions were not trivial, constituting special circumstances.

Reasoning

Guided by Locabail and Kenya Breweries v Okeyo, the court held that a mandatory injunction at the interlocutory stage requires special circumstances or a clear case. Here there was a subsisting order allowing the Applicant to use and utilize the suit property; by constructing thereon the 1st Defendant sought to change the substratum of the property and gain an advantage, so the circumstances were special and the acts not trivial.

p. 5

Legal principles established

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  • A mandatory injunction may be granted at the interlocutory stage in the absence of special circumstances only in clear cases, or where the act is simple and summary, easily remedied, or where the defendant attempted to steal a march on the plaintiff.
  • Before granting a mandatory interlocutory injunction the court must feel a high degree of assurance that at trial it would appear the injunction had rightly been granted - a higher standard than for a prohibitory injunction.
  • A prima facie case in a civil application is a genuine and arguable case in which a right has apparently been infringed so as to call for an explanation or rebuttal.

Court orders

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  1. 1.Application dated 21st March 2019 allowed entirely in terms of Prayers 3, 5, 6 and 7
  2. 2.Temporary mandatory injunction compelling the 1st Defendant, her agents, servants, employees or anyone claiming under her from encroaching, trespassing, building, wasting, damaging, alienating, disposing, selling and/or interfering with land parcel no. DAGORETI/RIRUTA/6213 pending hearing and determination of the suit (Prayer 3)
  3. 3.Temporary mandatory injunction compelling the 1st Defendant and those claiming under her to forthwith vacate the suit property pending hearing and determination of the suit (Prayer 5)
  4. 4.Time frame of 45 days from the date of the judgment fixed for the 1st Defendant to comply with Prayer 5; in default, the 2nd Defendant to enforce Prayer 6 (eviction and attendant costs)
  5. 5.Officer Commanding Station (OCS), Muthangari Police Station to supervise implementation and enforcement of the court order (Prayer 7)
  6. 6.1st Defendant to pay the costs of the application

Authorities

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Legislation

  • Land Registration ActSections 24(a), 25(1), 26(1)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (6)

  • Locabail International Finance –Vs– Agro-export and Others
    [1986] All E.R 901
  • Ndungu Boro –Vs– Peter K. Njuguna & Another
    [2002] eKLR
  • Kenya Breweries Ltd and Another –v– Washington O. Okeyo
    Civil Appeal No. 332 of 2000, 1EA 109
  • Giella vs Cassman Brown Co. Ltd
    (1973) EA 358
  • Mrao –Vs– First American Bank of Kenya & Two others
    [2003] KLR 125
  • Paul Gitonga Wanjau –Vs– Gathuthi Tea Factory Co. Ltd & 2 Others
    Nyeri HCC No. 28 of 2015
Jurisdiction invoked
Inherent jurisdiction of the court to grant interlocutory injunctions pending hearing of the suit (no specific constitutional/statutory provision invoked); Civil Procedure Rules Order 21 rule 1 waived for virtual delivery

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, "Rose Wangari Ndungu & another (Suing on their own behalf and for their own benefit and on behalf of and for the benefit of the Estate of the late Stanley Ndungu Njoroge) v Catherine Njeri & another [2020] KEELC 1697 (KLR)", Case Analysis (2020). Not stated in the judgment (suit number not reproduced in the text provided). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1697/eng@2020-07-16

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