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ELCPartially AllowedELC Case of 2018 (Nairobi)· [2020] KEELC 2538 (KLR)

Andrew Mwangi Chui & another v Hass Petroleum (K) Limited [2020] KEELC 2538 (KLR)

Environment and Land Court
7 May 2020
1,661 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that you cannot get an injunction protecting land if you haven't filed a claim or counter-claim in court.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (E.O. Obaga, J) determined three injunction applications arising from a long-running land dispute. The dispute traces to a 1981 allotment of part of LR No.12062/R to Mariani Auto Nursery by the defunct Nairobi City Council. In 1999 the 1st Plaintiff leased part of the land to Leonard Njoroge Kariuki and agreed to sell it to him, but the purchaser defaulted and clandestinely procured title (LR No.26719 IR 122352) without completing the purchase. That title later passed at a public auction in execution of a decree in favour of Fuelex Kenya Limited, and the auction purchaser sold the property to the Defendant. Meanwhile, the 1st Plaintiff obtained a decree for eviction in ELC 1074 of 2015. The Plaintiffs sought an injunction restraining interference with LR No.12062/915; the Defendant sought injunctions restraining interference with LR No.26719 IR 122352. The court found the Plaintiffs had demonstrated a prima facie case: the disputed property was part of their allotment, the originator of the Defendant's title never completed the purchase, and the eviction decree had not been stayed or varied. The Plaintiffs' application was allowed in terms of prayers (3) and (4). The Defendant's applications were dismissed because an injunction must be based on a suit and the Defendant had filed no counter-claim, and the court had already found the property formed part of the Plaintiffs' allotment. Costs on the dismissed applications were in the cause. The ruling was delivered on 7th May 2020 at Nairobi.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case for an injunction over LR No.12062/915

Holding

Yes; the court found the disputed property was part of the land allotted to the Plaintiffs and that Leonard Njoroge Kariuki procured title without completing the purchase

Reasoning

The court traced the title history: the property was allotted to Mariani Auto Nursery, the originator of the Defendant's title was initially a tenant who intended to purchase but defaulted, yet clandestinely procured title. The Plaintiffs hold an unvaried, unstayed decree for eviction in ELC 1074 of 2015. On these materials the prima facie threshold was met and prayers (3) and (4) were granted.

p. 2
02

Whether the Defendant was entitled to an injunction over LR No.26719 IR No.122352

Holding

No; the applications were dismissed because there was no counter-claim to support an injunction and the court had already found for the Plaintiffs

Reasoning

The court held an injunction must rest on a suit; the Defendant filed no counter-claim. Further, on the merits the court had found the disputed property formed part of the land allotted to the 1st Plaintiff, and an injunction had already issued in favour of the Plaintiffs. The Defendant's applications therefore lacked merit and were dismissed with costs in the cause.

p. 2

Legal principles established

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  • An injunction must be based on a suit; an applicant seeking an interlocutory injunction without a counter-claim or substantive suit cannot sustain the prayer
  • A prima facie case with probability of success is established where the applicant's title history shows the disputed property was allotted to him and the originator of the opposing title never completed the purchase

Court orders

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  1. 1.Allowed the Plaintiffs' Notice of Motion dated 25th April 2018 in terms of prayers (3) and (4), granting an injunction restraining the Defendant from interfering with LR No.12062/915
  2. 2.Dismissed the Defendant's two applications dated 20th December 2018 and 20th August 2019 with costs being in the cause
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land

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, "Andrew Mwangi Chui & another v Hass Petroleum (K) Limited [2020] KEELC 2538 (KLR)", Case Analysis (2020). ELC Case of 2018 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2538/eng@2020-05-07

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