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ELCDismissedNotice of Motion application dated 2nd June 2021 (suit number not stated in the judgment)· [2021] KEELC 344 (KLR)

Esther Muthoni Mwangi v Samuel Maina Njaria [2021] KEELC 344 (KLR)

Environment and Land Court
16 December 2021
3,022 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a landowner's injunction bid because she failed to prove a strong case and hid key facts.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Murang'a (L. Gacheru J) on a Notice of Motion dated 2nd June 2021 in which the plaintiff, Esther Muthoni Mwangi, a co-administrator of the estate of the late Arthur Ikua Gioche, sought a temporary injunction restraining the defendant, Samuel Maina Njaria, from entering, encroaching on, wasting, damaging, disposing of, cutting trees on or intermeddling with land known as LR LOC NO. 19/GACHARAGEINI/2994 pending the hearing of the suit. The plaintiff alleged the defendant had encroached on the estate's portion and was felling trees, amounting to intermeddling. The defendant opposed, contending the estate owned only 2.423 Ha of the suit property, that the co-administrator John R. Gathaiya Gioche had sold his own 15-acre portion to him, that the applicant had made material non-disclosure, and that the trees were on Gioche's portion. The court framed three issues: locus standi, the injunction threshold, and costs. On locus standi, it held itself functus officio, having determined the issue in a ruling of 29th July 2021. On the injunction, applying Giella v Cassman Brown and Order 40 Rule 1, the court found no prima facie case: the allegation that the felled trees were on Gioche's own portion was unrebutted, the applicant produced only photographs, and she failed to make full and frank disclosure. The other two Giella requirements therefore failed automatically. The application was dismissed entirely with costs to the defendant.

Key legal issues

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01

Locus standi of the applicant

Holding

The court declined to re-open the issue as it had already pronounced itself on the applicant's locus standi in its ruling of 29th July 2021

Reasoning

The court defined locus standi as the right to appear and be heard. Upon perusal of the record, the court found it had already determined the applicant's locus standi in an earlier ruling delivered on 29th July 2021, and being functus officio on that issue, declined to revisit it.

p. 2
02

Whether the application met the Giella v Cassman Brown threshold for a temporary injunction

Holding

No prima facie case was established; the other two requirements automatically fail and the application was dismissed

Reasoning

The suit land was registered partly in the name of John Gathaiya Gioche and partly in the names of the co-administrators of the estate. The respondent's allegation that the trees he felled were on Gioche's own portion was unrebutted; the applicant produced only photographs. She also failed to make full and frank disclosure. Gioche's Article 40 property right includes allowing the respondent to use the land.

p. 4
03

Costs

Holding

Costs follow the event; the successful respondent is entitled to costs

Reasoning

The court applied the trite principle that costs follow the event unless special circumstances exist. Finding no special circumstances, it awarded costs of the application to the defendant/respondent as the successful party.

p. 4

Legal principles established

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  • A party seeking an injunction must make full and frank disclosure of all relevant facts and show a right legal or equitable requiring protection by injunction
  • The burden of proving a prima facie case lies with the applicant before it shifts to the respondent
  • Locus standi signifies a right to be heard, requiring sufficiency of interest

Court orders

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  1. 1.The Notice of Motion application dated 2nd June 2021 is dismissed entirely with costs to the Defendant/Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1(a) and (b)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of Kenya 2010Article 40(1) and 40(3)

Cases cited (13)

  • Giella vs. Casman Brown (1973) EA 358
    (1973) EA 358
  • Pius Kipchirchir Kogo vs. Frank Kemeli Tenai
    (2018) eKLR
  • Nguruman Ltd vs. Jan Bonde Nielsen
    CA 77 of 2012
  • Mbuthia vs. Jimba Credit Corperation Ltd.
  • American Cynamid vs. Ethicom Limited
  • Moses C. Muhia Njoroge & 2 others vs. Jane W. Lesaloi and 5 others
    (2014) eKLR
  • Republic vs. Nairobi City Council and 3 others Ex parte Christine Wangari Gachege suing on behalf of the Estate of Rahab Wanjiru Evans
    (2014)
  • Law Society of Kenya Vs. Commissioner of Lands & Others
    Nakuru High Court Civil Case No.464 of 2000
  • Alfred Njau and Others Vs. City Council of Nairobi
    (1982) KAR 229
  • Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others
    [2016] eKLR
  • Mrao Ltd vs First American Bank of Kenya and 2 others
    (2003) KLR 125
  • Winfred Nyawira Maina vs. Peterson Onyiego Gichana
    (2015) eKLR
  • Kenleb Cons Ltd vs New Gatitu Service Station Ltd & another
    (1990) eKLR
Jurisdiction invoked
Order 40 Rule 1(a) of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Article 40 of the Constitution of Kenya 2010

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, "Esther Muthoni Mwangi v Samuel Maina Njaria [2021] KEELC 344 (KLR)", Case Analysis (2021). Notice of Motion application dated 2nd June 2021 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/344/eng@2021-12-16

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