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ELCDismissedNot stated in the judgment· [2020] KEELC 2128 (KLR)

Clement Muturi Kigano v County Government of Mombasa & 2 others [2020] KEELC 2128 (KLR)

Environment and Land Court
4 June 2020
AOA. Omollo
3,666 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer who waited over twenty years to claim ownership lost his injunction bid for lacking documents and delaying too long.

What this practically means

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Executive summary

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The Plaintiff, Clement Muturi Kigano, moved the Environment and Land Court by Notice of Motion dated 19th December 2018 under Order 40 of the Civil Procedure Rules and section 13(7)(a) of the Environment and Land Court Act, seeking a temporary injunction restraining the Defendants, particularly the 2nd Defendant Grace Wangui Mahuthu, from developing, selling, transferring or otherwise interfering with Title No. MOMBASA/MN/BLOCK 1/713 (Mikindani Site and Service Scheme). He claimed he had purchased the plot from the original 1987 allottee, Mwakandi Ngao Mwakandi, holding a registered power of attorney, only to discover temporary structures in 2015 and later that the 2nd Defendant held title after a repossession and re-allocation by the defunct Municipal Council of Mombasa for non-payment of rates and loan installments. The 1st Defendant (County Government of Mombasa) maintained the repossession followed multiple unheeded notices from 1988 to 1995, while the 2nd Defendant asserted she was allocated the plot in 1995, developed it, paid rates, and obtained a title deed in 2009, holding an indefeasible title. Applying Giella v Cassman Brown sequentially and the Mrao definition of a prima facie case, the court found the Plaintiff had produced no allotment letter or sale agreement, that the letter evidencing assignment was undated, unsigned and unstamped, that a power of attorney does not confer ownership, and that his two-decade delay disentitled him from equitable relief. His alternative prayer for market-value compensation also negated irreparable harm. The application was dismissed with costs to both Respondents.

Key legal issues

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01

Prima facie case with probability of success

Holding

Not established; the Plaintiff lacked a letter of allotment or sale agreement and the authenticity of his supporting letter was in doubt

Reasoning

The Plaintiff produced no allotment letter issued to Mwakandi and no sale agreement transferring ownership. The Power of Attorney referenced a house rather than conferring ownership, and the letter notifying assignment was undated, unsigned and unstamped. The chronology of repossession for non-payment was not seriously disputed. Delay of over two decades and absence of possession further undermined the claim.

p. 4
02

Irreparable harm

Holding

Not established; the Plaint's alternative prayer for payment of market value shows damages would suffice

Reasoning

The Plaint itself contained an alternative prayer for payment of a sum equivalent to the market value of the property, indicating the Plaintiff could be compensated monetarily if successful, so no irreparable harm not compensable by damages could arise.

p. 4

Legal principles established

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  • The conditions for an interlocutory injunction in Giella v Cassman Brown are to be attained sequentially; failure on the first limb disposes of the application
  • Equity does not aid the indolent; inordinate delay in seeking injunctive relief weighs against the applicant

Court orders

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  1. 1.The Notice of Motion application dated 19th December 2018 is dismissed with costs to the 1st and 2nd Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 40
  • Environment and Land Court Actsection 13(7)(a)
  • Rating Actsection 17
  • Law of Contract Actsection 3(1)
  • Registration of Titles Act (repealed)section 23
  • Land Registration Actsection 26
  • Valuation for Rating Actsection 7

Cases cited (7)

  • Henry Kuria Ndethi Vs Molo Town Council & Another
    (2015) eKLR
  • Wreck Motor Enterprises Vs the Commissioner of Lands & Others
    (1997) eKLR
  • Njuwangu Holdings Ltd Vs Langata KPA Nairobi & 5 Others
    (2014) eKLR
  • Giella Vs Cassman Brown
    (1973) EA 358
  • Stephen Mburu & 4 Others Vs Comat Merchants Ltd & Another
    (2012) eKLR
  • Mrao Limited Vs First American Bank of Kenya Limited & 2 Others
    (2003) eKLR
  • Nguruman Ltd versus Jan Bonde Nielsen
    (2014) eKLR
Jurisdiction invoked
Order 40 of the Civil Procedure Rules and section 13(7)(a) of the Environment and Land Court Act

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, "Clement Muturi Kigano v County Government of Mombasa & 2 others [2020] KEELC 2128 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2128/eng@2020-06-09

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