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ELCDismissed(not stated in excerpt; plaint filed 31st October 2019, Notice of Motion dated 31st October 2019)· [2020] KEELC 2587 (KLR)

Mary Muthoni Ruara v County Government of Nakuru [2020] KEELC 2587 (KLR)

Environment and Land Court
30 April 2020
DOD. O. Ohungo
775 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff sued over construction of a road through her land, North of Gilgil Township Land Reference Number 3777/1157, and by Notice of Motion dated 31st October 2019 sought a temporary injunction restraining the defendant, its agents or servants from encroaching on or interfering with the property pending hearing of the suit, with OCS Gilgil Police Station to supervise compliance, and costs in the cause. The defendant opposed through a replying affidavit of Simon Nginga, its Resident Gilgil Sub County, contending it had merely rehabilitated an existing Kigogo–Kagumo road between 26th May and 2nd September 2019. The court applied the Giella v Cassman Brown test as restated in Nguruman Limited v Jan Bonde Nielsen, emphasising that the conditions are sequential hurdles. It found uncontroverted that the road had been fully constructed before the suit was filed, a fact corroborated by the applicant's own affidavit and her photographs dated 22nd October 2019 showing a fully graded road. The court held that the act sought to be restrained had already occurred, the road was in public use, and no direct threat occasioning urgent necessity to prevent irreparable damage was disclosed. Concluding the application was overtaken by events and no prima facie case was demonstrated, the court dismissed the Notice of Motion, ordered costs in the cause, and directed parties to prosecute the main suit. The ruling was delivered remotely under the Chief Justice's COVID-19 Practice Directions on 30th April 2020.

Key legal issues

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01

Whether an interlocutory injunction can issue to restrain an act already completed

Holding

No injunction will issue where the act sought to be restrained has already taken place; such an application is overtaken by events and discloses no prima facie case

Reasoning

The court found the road construction through the suit property was completed on 2nd September 2019, before the suit was filed on 31st October 2019. The applicant's own affidavit and photographs corroborated completion, and the road was in public use. No direct threat of future invasion or urgent necessity to prevent irreparable damage was disclosed, so the Giella test failed at the first stage.

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02

Applicability of the Giella v Cassman Brown test to interlocutory injunctions

Holding

The applicant must sequentially establish a prima facie case with probability of success, show damages would not be adequate compensation, and only then rely on the balance of convenience

Reasoning

The court restated the Nguruman formulation that the three Giella conditions are separate, distinct and logical hurdles to be surmounted sequentially, so failure at the prima facie stage ends the inquiry. The burden lies on the applicant to show a clear and unmistakable right directly threatened by the act to be restrained, with material and substantive invasion and urgent necessity.

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Legal principles established

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  • The Giella conditions are sequential hurdles; if a prima facie case is not established, irreparable injury and balance of convenience need not be considered
  • An applicant for a prima facie case must show a clear and unmistakable right directly threatened, with material and substantive invasion and urgent necessity

Court orders

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  1. 1.Notice of Motion dated 31st October 2019 is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Cases cited (2)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes (interlocutory application in a pending suit)

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, "Mary Muthoni Ruara v County Government of Nakuru [2020] KEELC 2587 (KLR)", Case Analysis (2020). (not stated in excerpt; plaint filed 31st October 2019, Notice of Motion dated 31st October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2587/eng@2020-04-30

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