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ELCDismissedNot stated in the judgment (Eastleigh, LR No 36/1/871)· [2020] KEELC 1928 (KLR)

Catherine Njeri Macharia v Macharia Kagio & another [2020] KEELC 1928 (KLR)

Environment and Land Court (High Court as constituted at the time, Nairobi)
24 June 2020
3,450 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to evict a property's registered owner, ruling that parties already evicted must use proper legal channels, not repeat failed applications.

What this practically means

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Executive summary

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This ruling by Eboso J of the Environment and Land Court at Nairobi disposed of two applications arising from a 2009 land suit in which the plaintiff, Catherine Njeri Macharia, sued her father, Macharia Kagio (1st defendant), and Habiba Ahmed Mohamed (2nd defendant), alleging that her father had gifted her LR No 36/1/871 Eastleigh and later sold it to the 2nd defendant. The suit against the 2nd defendant had been struck out by Muchelule J on 1/10/2010 for non-compliance of the power of attorney with the Government Lands Act; the 2nd defendant thereafter obtained unopposed eviction orders from Koome J on 2/11/2011, and a stay application by the plaintiff was dismissed by Mutungi J on 18/4/2013. In November 2019, following eviction of the 1st defendant and plaintiff, both filed separate applications seeking status quo ante orders and restoration into the property pending the main suit and the plaintiff's interlocutory appeal (Civil Appeal No Nai 338 of 2013). The court applied the Locabi International Finance test for mandatory injunctions and Giella v Cassman Brown for ordinary injunctions. It held that the striking-out order against the 2nd defendant, the registered proprietor in possession, had never been set aside, so no injunctive relief could issue against her; the 1st defendant had no counterclaim and had already failed on a similar plea in the Court of Appeal in Civil Application No Nai 308 of 2013, rendering his application a blatant abuse of process. Both applications were dismissed with each applicant bearing their own costs.

Key legal issues

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01

Criteria for mandatory injunction on an interlocutory application

Holding

The 1st defendant failed to meet the special-circumstances threshold and had no counterclaim to found the relief

Reasoning

The court adopted the Locabi International Finance test, as applied in Kenyan decisions, requiring special circumstances and a high sense of assurance. Since the 2nd defendant was the registered proprietor and the order striking her out of the suit had not been set aside, and the 1st defendant had no counterclaim, the mandatory injunction could not issue; a similar plea had also failed in the Court of Appeal, rendering the application an abuse of process.

p. 4
02

Plaintiff's injunctive relief against a struck-out party pending appeal

Holding

Dismissed; no injunction can issue against the 2nd defendant who is no longer a party, and the court cannot overturn the Court of Appeal's decision

Reasoning

The suit against the 2nd defendant was struck out on 1/10/2010 and that order had neither been set aside nor stayed. Injunctive orders directed against her could therefore not issue in this suit. Further, the Court of Appeal had already declined a similar plea in Civil Application No Nai 308 of 2013; inviting the trial court to overturn it was beyond its jurisdiction.

p. 4

Legal principles established

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  • No injunctive order of any kind can be issued against a party who has been struck out of the suit unless the striking-out order is set aside
  • A mandatory injunction on an interlocutory application requires special circumstances and a high sense of assurance
  • Orders alleged to be illegal nullities must be challenged in the manner provided by law, not collaterally

Court orders

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  1. 1.The 1st defendant's notice of motion dated 6/11/2019 is dismissed for lack of merit
  2. 2.The plaintiff's notice of motion dated 19/11/2019 is similarly dismissed for lack of merit
  3. 3.The respective applicants in the two applications shall bear costs of their respective applications
Jurisdiction invoked
Original civil jurisdiction of the High Court over the land suit; inherent powers under Section 34 of the Civil Procedure Act invoked by the 1st defendant

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, "Catherine Njeri Macharia v Macharia Kagio & another [2020] KEELC 1928 (KLR)", Case Analysis (2020). Not stated in the judgment (Eastleigh, LR No 36/1/871). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1928/eng@2020-06-24

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