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ELCPartially AllowedNot stated in the judgment (Motion application dated 28th July 2021)· [2021] KEELC 822 (KLR)
Isaac Gathungu Wanjohi v Saif Holdings Limited & another [2021] KEELC 822 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#A Nairobi land court halted construction on a disputed Mombasa Road plot, but refused to restrict government approvals because the landowner offered no proof any approval existed.
What this practically means
#Executive summary
#This is a ruling of the Environment and Land Court at Nairobi on a Notice of Motion dated 28th July 2021 by the Applicant, Isaac Wanjohi Gathungu, seeking interim and temporary conservatory injunctions restraining the 1st Respondent from continuing construction of a warehouse on L.R. No. 15107 along Mombasa Road, and restraining the 2nd Respondent from issuing a certificate of occupation or other approvals to the 1st Respondent. The Applicant claimed ownership of the suit property, acquired by transfer from Wagika General Construction on 7th June 1995 with title issued on 27th June 1995, and alleged that the 1st Respondent was unlawfully constructing on his land, a matter he had reported to the Director of Criminal Investigations. The 1st Respondent filed no response despite service, leaving the Applicant's affidavit evidence uncontroverted. The 2nd Respondent filed grounds of opposition contending that no right of the Applicant had been infringed. Justice E. K. Wabwoto framed a single issue: whether the Applicant had met the threshold for temporary injunctions under Giella v Cassman Brown, applying the Mrao definition of a prima facie case. The court found a prima facie case and irreparable harm against the 1st Respondent, protected the Applicant's Article 40 property rights, and granted prayer 4 only. Against the 2nd Respondent, no evidence of the alleged construction approval existed, so no prima facie case was established and relief was refused. Costs were ordered to be in the cause.
Key legal issues
#01
Whether the Applicant met the Giella v Cassman Brown threshold for a temporary injunction
Holding
Prayer 4 granted against the 1st Respondent only; the application failed against the 2nd Respondent
Reasoning
The court applied Giella v Cassman Brown and Mrao. The Applicant's ownership claim was uncontroverted by the 1st Respondent, who filed no response, so a prima facie case and irreparable harm were established against him. Against the 2nd Respondent, no evidence of the alleged approval existed, so no prima facie case was shown and no orders issued against that party.
p. 2
Legal principles established
#- The onus in an interlocutory injunction application is on the Applicant to establish a prima facie case with probability of success, irreparable loss not compensable by damages, and, if in doubt, the balance of convenience
Court orders
#- 1.Application dated 28th July 2021 allowed in terms of prayer 4 as against the 1st Respondent only
- 2.Interim/temporary conservatory injunction restraining the 1st Defendant/Respondent, his agents, servants and/or employees or any other person from continuing with the construction/development on L.R. No. 15107 along Mombasa Road pending the hearing and determination of the suit
- 3.Costs of the application to be in the cause
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court (constitutional protection of property under Article 40 invoked by the court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaac Gathungu Wanjohi v Saif Holdings Limited & another [2021] KEELC 822 (KLR)", Case Analysis (2021). Not stated in the judgment (Motion application dated 28th July 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/822/eng@2021-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.