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ELCDismissedNot stated in the judgment (Notice of motion dated 27th June 2019)· [2021] KEELC 827 (KLR)

Ngamau Muigai Mungai & another v JM Kathenge & another [2021] KEELC 827 (KLR)

Environment and Land Court
18 November 2021
LKL. KOMINGOI
1,466 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 refused to stop defendants from dealing with two Nairobi properties because the applicants couldn't prove their case was likely to succeed.

What this practically means

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Executive summary

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This is a ruling on a Notice of motion dated 27th June 2019 by the 1st and 2nd Plaintiffs, brought under Order 40 rules 1 and 2 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act, seeking a temporary injunction restraining the Defendants from entering, trespassing on, demolishing structures on, selling, transferring or dealing with suit parcels L.R No.81314 and 18316 pending the hearing of the main suit. The Plaintiffs, registered lessees of the suit properties, deponed that they had erected a perimeter wall and operate a slaughter house on which over 1,000 people depend daily; that in 2015 a group called 'Vijana Kaa Rada Initiative' demolished part of the wall and filed ELC No. 1100 of 2015 which has never been prosecuted; and that after obtaining approval and paying requisite fees from the 2nd Defendant to rebuild the wall, the 2nd Defendant demolished the rebuilt wall with bulldozers. The Respondents opposed, asserting no authority was granted to construct over a riparian reserve, that an enforcement notice was issued, and that section 89 of the Physical and Land Use Planning Act indemnifies the 1st Defendant. Framing two issues (the injunction threshold and costs), the court applied the Giella v Cassman Brown principles as explained in Mrao Ltd v First American Bank, held there was a disputed factual issue as to whether the wall sat on a riparian reserve requiring evidence at trial, found the Plaintiffs had established neither a prima facie case with probability of success nor irreparable loss not compensable by damages, and dismissed the application, with costs abiding the outcome of the main suit.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case with probability of success and irreparable damage to warrant a temporary injunction

Holding

The application fails; no prima facie case and no irreparable loss demonstrated

Reasoning

The court applied the Giella v Cassman Brown principles as restated in Mrao Ltd v First American Bank. There was a live factual dispute as to whether the perimeter wall was erected over a riparian reserve, which could only be resolved at trial. The Applicants, bearing the onus, did not demonstrate a bona fide arguable case with a probability of success, nor that damages would be an inadequate remedy. The application was accordingly dismissed with costs abiding the main suit.

p. 3

Legal principles established

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  • In an application for injunction the onus is on the applicant to satisfy the court that the injunction should be granted, per the Giella v Cassman Brown principles

Court orders

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  1. 1.The Notice of Motion dated 27th June 2019 is dismissed
  2. 2.Costs of the application to abide the outcome of the main suit
Jurisdiction invoked
Order 40 rules 1 and 2 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act

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, "Ngamau Muigai Mungai & another v JM Kathenge & another [2021] KEELC 827 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of motion dated 27th June 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/827/eng@2021-11-18

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