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ELCDismissedNotice of Motion dated 23rd July 2019 (Nakuru ELC suit)· [2020] KEELC 2954 (KLR)

Mary Wanjiku Mangara & 2 others v Lonard Waweru Gichuhi & 5 others [2020] KEELC 2954 (KLR)

Environment and Land Court
30 April 2020
DOD. O. Ohungo
1,563 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan land group lost its bid to block subdivision because photos of a grader on the property didn't prove who was doing the work.

What this practically means

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Executive summary

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The plaintiffs, Nyakiambi Women Self Help Group, moved the court by Notice of Motion dated 23rd July 2019 seeking an interlocutory injunction restraining the defendants from sub-dividing, constructing roads, developing, offering for sale or otherwise interfering with L.R. No. 1024 Mirera Suswa Southern Naivasha Municipality, and an order directing the County Commissioner, Naivasha sub-county to ensure compliance. The application was supported by the affidavit of James M. Njonge, who alleged that on 21st June 2019 the defendants brought surveyors and machinery onto the suit property, which members claimed to have purchased in 1986 from John Gichuhi Mutego (deceased). The application was withdrawn against the 6th defendant; the 1st to 3rd defendants did not oppose it so long as no injunction issued against them; and the 4th and 5th defendants denied involvement and any connection to the property or the estate. Applying the Giella -vs- Cassman Brown test as restated in Nguruman Limited v Jan Bonde Nielsen, the court found the applicants failed to establish a prima facie case: the photographs exhibited showed only a grader and graded land, with nothing linking the works to the 4th and 5th defendants. General allegations could not shift the burden onto the defendants to offer specific denials. The court declined to consider the remaining limbs of the Giella test and dismissed the Notice of Motion with costs to the 4th and 5th defendants. The ruling was delivered remotely under the Chief Justice's COVID-19 practice directions.

Key legal issues

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01

Whether the applicants established a prima facie case for an interlocutory injunction

Holding

No prima facie case was established against the 4th and 5th defendants

Reasoning

The court applied the Giella test as explained in Nguruman. The applicants alleged subdivision, beacon erection and road construction by the defendants, but the exhibited photographs only showed a grader and graded land, with no evidence that the 4th and 5th defendants undertook the alleged acts. Being the party bearing the burden of proof, the applicants had to demonstrate a clear and unmistakable right directly threatened; general allegations did not suffice.

02

Scope of the application after withdrawal against the 6th defendant and lack of opposition by the 1st to 3rd defendants

Holding

The application was taken as only against the 4th and 5th defendants

Reasoning

The application was withdrawn against the 6th defendant, and the applicants' counsel argued only for orders against the 4th and 5th defendants. The court therefore treated the 1st to 3rd defendants as no longer being pursued, noting they opposed any injunction since they occupy the land.

p. 2

Legal principles established

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  • The Giella -vs- Cassman Brown conditions are sequential hurdles; if no prima facie case is established, irreparable injury and balance of convenience need not be considered
  • An applicant bearing the burden of proof must show a clear and unmistakable right and that the respondent directly, materially and substantially threatened it; general allegations are insufficient

Court orders

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  1. 1.Notice of Motion dated 23rd July 2019 is dismissed with costs to the 4th and 5th defendants

Authorities

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Legislation

  • Practice Directions for the Protection of Judges, Judicial Officers, Judiciary Staff, other Court Users and the General Public from the Risks Associated with the Global Corona Virus PandemicGazette Notice No. 3137, Kenya Gazette Vol. CXXII—No. 67 of 17th April 2020

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
Environment and Land Court jurisdiction; applicants directed by High Court in Nakuru HC Succession Cause No. 403 of 2009 (ruling of 12th June 2019) to pursue remedy in this court

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 Wanjiku Mangara & 2 others v Lonard Waweru Gichuhi & 5 others [2020] KEELC 2954 (KLR)", Case Analysis (2020). Notice of Motion dated 23rd July 2019 (Nakuru ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2954/eng@2020-04-30

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