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ELCDismissedNot stated in judgment· [2021] KEELC 876 (KLR)

Mwakaki Investment Company Limited v David Gikaria & 3 others [2021] KEELC 876 (KLR)

Environment and Land Court
24 November 2021
MNMwangi Njoroge
2,263 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, through a notice of motion dated 15/9/2021, sought temporary injunctions restraining the defendants from dispossessing, trespassing on, wasting, constructing on, alienating or interfering with Plot L.R No. Kiambogo/Kiambogo Block 2/1209, plus an order for police enforcement and costs. Its director deposed that the company had been in continuous possession since 2001, had obtained a NEMA licence and a county permit for excavation/land levelling, but that the defendants sent goons who attacked workers and destroyed temporary structures. The respondents, sworn by David Gikaria, disclaimed any proprietary interest, contending the plaintiff's true project was commercial sand harvesting resisted by residents of the Imperial Game area because of environmental hazards including landslides and erosion, and alleging forgery of minutes and a corruptly obtained NEMA licence; they sought joinder of a NEMA expert. Applying the Giella v Cassman Brown principles, Mwangi Njoroge J found the plaintiff failed to show a prima facie case because it did not annex its title deed or prove registration as proprietor; since the defendants claimed no proprietary interest, an injunction against them would be futile. Further, the demolished temporary structures meant the injunction sought was overtaken by events, injunctions being preventative only, with damages an adequate remedy. The application was dismissed with costs to the defendants, with directions for compliance with the rules within 21 and 42 days respectively and mention on 3/2/2022 for fixing a hearing date. The court observed joinder of the NEMA expert may be a future course in the litigation.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success

Holding

No - the plaintiff failed to prove it is the registered proprietor of the suit land and did not annex a title deed

Reasoning

Although the plaintiff deposed to continuous possession since 2001, it did not annex a title deed. Possession alone is insufficient to establish ownership. The defendants, who disclaimed any proprietary interest, could not meaningfully be restrained. A prima facie case is thus not established and the first Giella condition fails.

p. 3
02

Whether an injunction can issue where the harm complained of has already occurred

Holding

No - injunctions are preventative; the demolished temporary structures cannot be protected by injunction, and damages would be an adequate remedy

Reasoning

The photographs showed the temporary structures were already demolished. Following Habiba Ali Mursal and Moses M Wairimu, the court held an injunction cannot prevent what has already happened. Any claim for unlawful demolition can be compensated in monetary terms, so the second Giella condition also fails.

p. 3

Legal principles established

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  • An applicant for an interlocutory injunction must show a prima facie case with probability of success, irreparable injury not compensable by damages, and failing which the balance of convenience
  • An injunction cannot issue to restrain what has already occurred
  • Where an alternative statutory remedy exists, it should be pursued before raising a constitutional issue

Court orders

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  1. 1.The notice of motion dated 15/9/2021 is dismissed with costs to the defendants/respondents
  2. 2.The parties shall comply with the rules, the plaintiff within 21 days and the defendants within 42 days, running concurrently from the date of the order
  3. 3.Matter to be mentioned on 3/2/2022 for fixing of a hearing date
Jurisdiction invoked
Sections 4 and 13 of the Environment and Land Court Act, 2011

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, "Mwakaki Investment Company Limited v David Gikaria & 3 others [2021] KEELC 876 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/876/eng@2021-11-24

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