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ELCDismissedNakuru ELC Appeal (from Nakuru CM ELC No. 421 of 2020)· [2021] KEELC 436 (KLR)

Lydia Wairimu Job & another v John Ngunyi Muchiri [2021] KEELC 436 (KLR)

Environment and Land Court
15 December 2021
MNMwangi Njoroge
3,026 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner in occupation cannot be removed through an interim injunction; Kenyan courts require special circumstances before granting mandatory injunctions at interlocutory stage.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court, Nakuru, against a ruling of Hon. L. Arika, CM, delivered on 23 December 2020 in Nakuru CM ELC No. 421 of 2020 dismissing the appellants' application for a temporary injunction restraining the respondent from interfering with parcel Nakuru/Cedar Lodge/141 pending trial. The underlying dispute stems from a Court of Appeal judgment (John Kamunya v Jon. Nginyi Muchiri, 2015) that cancelled the respondent's title and restored the appellants' title deeds, but the respondent remained in occupation and a review application before the Court of Appeal is pending. The appellants argued the magistrate erred in declining the injunction, speculated about the review application, and failed to enforce a valid decree. Justice Mwangi Njoroge accepted that the magistrate misdirected herself by focusing on the pending review application rather than the merits, since absent a stay order she needed only consider the Court of Appeal decision. However, the court held that because the respondent was in occupation and possession was admitted, the injunction sought would operate as a mandatory injunction, which is discouraged at the interlocutory stage absent special circumstances such as a stolen march. The court applied Kenya Breweries v Okeyo and Kamau Mucuha v Ripples Ltd, and found the appellants had failed to show damages were inadequate or that the balance of convenience favoured them. The magistrate having reached the right conclusion by a different route, the appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the trial magistrate misdirected herself by considering the pending review application before the Court of Appeal

Holding

Her consideration of the pending review application was a misdirection; absent a stay order she needed only consider the Court of Appeal decision and other ordinary injunction factors

Reasoning

The court held the merits of an injunction lie in the strength of the parties' cases before the trial court, not external factors. The magistrate wrongly focused on the risk of conflicting with the appellate court's findings on an undetermined review. However, the additional facts on the record (respondent's possession and possible adverse possession claim) would in any event not have favoured the injunction.

p. 3
02

Whether the injunction sought was in substance a mandatory injunction which could not be granted interlocutorily

Holding

Yes - since the respondent was in occupation and the appellants admitted possession, the order sought would operate as a mandatory injunction, which is highly discouraged at interlocutory stage absent special circumstances

Reasoning

The court relied on Kenya Breweries v Okeyo and Kamau Mucuha v Ripples Ltd that mandatory injunctions on motion require special circumstances, clear cases, or a stolen march, and a high degree of assurance of success at trial. None was shown here.

p. 3
03

Whether the appellants satisfied the Giella v Cassman Brown conditions

Holding

Although the appellants had a prima facie case, they failed to establish that damages were inadequate or that the balance of convenience favoured the injunction

Reasoning

The court found the respondent in occupation; granting the injunction would evict him and effectively determine the suit. The status quo needed preservation for trial. The magistrate reached the right conclusion though by a different route.

p. 4

Legal principles established

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  • A mandatory injunction will not normally be granted on an interlocutory application absent special circumstances, such as where the act is simple and summary or the defendant stole a march on the plaintiff
  • Where possession is admitted to be with the other party, the injunction sought would amount to a mandatory injunction and is untenable where a review application and the main suit remain pending

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)

Cases cited (5)

  • John Kamunya & Another v Jon. Nginyi Muchiri & 3 others
    (2015) eKLR
  • Giella v Cassman Brown
    [1973] EA 358
  • Kenya Breweries Ltd & Another v Washington Okeyo
    (2002) eKLR
  • Locabail International Finance Ltd v Agroexport and others
    [1986] 1 ALL ER 901
  • Kamau Mucuha v Ripples Ltd
    [1993] eKLR
On appeal from
Chief Magistrate's Court, Nakuru
Nakuru CM ELC No. 421 of 2020
Jurisdiction invoked
First appeal to the Environment and Land Court against the ruling of the Chief Magistrate's Court in Nakuru CM ELC No. 421 of 2020

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, "Lydia Wairimu Job & another v John Ngunyi Muchiri [2021] KEELC 436 (KLR)", Case Analysis (2021). Nakuru ELC Appeal (from Nakuru CM ELC No. 421 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/436/eng@2021-12-15

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