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ELCPartially AllowedNot stated in the judgment· [2021] KEELC 345 (KLR)

James Kioo Ndonga v Shadrack Muthoka Kioo; Kakimu Joint Venture (Third Party) [2021] KEELC 345 (KLR)

Environment and Land Court
15 December 2021
TMT. Murigi
2,134 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court protected a family's two occupied acres from subdivision but let the registered owner subdivide the rest of the land.

What this practically means

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Executive summary

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The Defendant/Applicant, who claims two acres within land parcel No. Nzaui/Ikangavya/650 inherited from his father (the Plaintiff), moved the court by Notice of Motion dated 9 June 2021 seeking a temporary injunction restraining the third party, Kakimu Joint Venture - the registered owner of the whole parcel - from entering, trespassing, subdividing, transferring or otherwise dealing with the suit land pending hearing of the application and the Defendant's counterclaim. The applicant asserted he was in occupation of the two acres and that the third party intended to deal with the land after visiting the Nzaui Land Control Board. The third party, through its chairman, acknowledged the pending dispute over the two acres but sought leave to subdivide the land, holding the disputed two acres in abeyance, and argued no prima facie case had been shown. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the court held the applicant's actual occupation of the two acres - confirmed by the plaintiff's claim for eviction - established a prima facie case limited to that portion. The third party's admitted intention to subdivide established likely irreparable loss not compensable in damages, and the balance of convenience favoured the occupier. The application was allowed in narrow terms: the third party may subdivide the parcel except the two occupied acres pending trial; costs were made costs in the cause; and the parties were directed to comply with Order 11 within 30 days. The blanket injunction sought was refused.

Key legal issues

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01

Prima facie case with probability of success

Holding

Established only to the extent of the 2 acres the applicant occupies

Reasoning

The certificate of title shows the third party is the registered owner, and the applicant did not dispute this. However, the applicant is in actual occupation of two acres, a fact the plaintiff's claim for eviction confirms, and the dispute centres on an alleged exchange of those two acres with Email Plot No 838. Occupation gives an apparently infringed right calling for rebuttal.

p. 3
02

Irreparable loss not compensable by damages

Holding

Established because subdivision of the occupied two acres would cause irreparable harm

Reasoning

The applicant resides with his family on the two acres. The third party admitted seeking Land Control Board consent to subdivide into three portions, not to sell. Subdivision of the occupied portion would disrupt a harm that cannot be quantified or cured in monetary terms.

p. 3
03

Balance of convenience

Holding

Tilts in favour of the applicant as he is in occupation

Reasoning

The applicant lives on the two acres with his family; maintaining the status quo over the occupied portion preserves the subject matter pending trial, while the third party remains free to deal with the rest of the parcel.

p. 3

Legal principles established

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  • Prima facie case threshold for injunctions (adopting Mrao Ltd)
  • Definition of irreparable harm
  • Actual physical occupation can establish a prima facie case and irreparable loss even where the occupier is not the registered owner

Court orders

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  1. 1.The third party is at liberty to sub-divide the land parcel No Nzaui/Ikangavya/650 except for the 2 acres currently occupied by the defendant/applicant pending the hearing and determination of this suit.
  2. 2.The costs of the application be in the cause.
  3. 3.Parties to comply with Order 11 within the next 30 days.

Authorities

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Legislation

  • Civil Procedure CodeSection 1A
  • Civil Procedure CodeSection 1B
  • Civil Procedure CodeSection 3A
  • Civil Procedure CodeSection 63(e)
  • Civil Procedure RulesOrder 11

Cases cited (5)

  • Giella vs Cassman Brown & Co Ltd
    1973 EA 358
  • Paul Gitonga Wanjau vs Gathuthi Tea Factory Company Ltd & 2 Others
    (2016) eKLR / Nyeri HCC No. 28 of 2015
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    (2003) eKLR
  • Pius Kipchirchir Kogo vs Frank Kimei Tenai
    (2018) eKLR
  • Alwalaa Construction Company vs Synergy Industrial Credit Ltd & Another
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction; Notice of Motion under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Code, matter pending before the ELC

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, "James Kioo Ndonga v Shadrack Muthoka Kioo; Kakimu Joint Venture (Third Party) [2021] KEELC 345 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/345/eng@2021-12-15

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