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ELCOtherApplication dated 7th September 2021 (suit over PLOT NO.533/678 MOLO TOWNSHIP)· [2021] KEELC 979 (KLR)

James Macharia Mwangi v Kenya Railway Corporation & another [2021] KEELC 979 (KLR)

Environment and Land Court
17 November 2021
MNMwangi Njoroge
1,614 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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This is a ruling of the Environment and Land Court at Nakuru (Mwangi Njoroge J) on the plaintiff's application dated 7th September 2021 seeking a temporary injunction restraining the defendants from trespassing on, fencing, demolishing or destroying the plaintiff's developments on PLOT NO.533/678 MOLO TOWNSHIP, or alternatively an order maintaining the status quo as it existed before the alleged acts of trespass. The plaintiff claimed ownership under a 1995 allotment letter and relied on a decree in Nakuru CMCC No. 477 of 2004 declaring the plot not to be public land, and a judicial review decision quashing the cancellation of his title. The defendants opposed, contending the plaintiff held no certificate of title, was illegally in occupation, and that the injunction would halt projects of national importance. Applying Giella v Cassman Brown, the court found the plaintiff had established possession and a prima facie case with a high probability of success, but had not demonstrated that damages would be inadequate. Noting that the disputed 10-metre strip had already been fenced and was in the 1st defendant's possession, the court held the prayers sought amounted to a mandatory injunction at an interlocutory stage, which is highly discouraged. It also observed that the prior litigation did not include the current 1st defendant. The court declined the injunction and ordered both parties to preserve the status quo as at the date of the order until the suit is heard and determined, with costs in the cause.

Key legal issues

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01

Whether a temporary injunction should issue against the defendant pending hearing and determination of the suit

Holding

Injunction refused; instead both parties ordered to preserve the status quo as at the date of the order pending trial

Reasoning

Although the applicant established possession via an allotment letter, photographs and a decree from prior litigation, he produced no Certificate of Title and failed to show damages would be inadequate. The encroached 10-metre strip was already fenced and possessed by the 1st defendant, so the prayers sought would operate as a mandatory injunction at interlocutory stage, which practice discourages. Prior litigation did not include the 1st defendant and the title's validity was never tried on the merits.

p. 2
02

Costs of the application

Holding

Costs in the cause

Reasoning

The court made no express finding on which party should bear costs, instead deferring costs to the outcome of the main suit in the usual way for interlocutory applications.

p. 2

Legal principles established

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  • The Giella test governs temporary injunctions: prima facie case with probability of success, irreparable loss not compensable in damages, and balance of convenience if in doubt
  • Mandatory injunctions at an interlocutory stage are highly discouraged in practice
  • A judgment in prior litigation does not bind a party who was not joined to that litigation

Court orders

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  1. 1.Both parties shall preserve the status quo prevailing over the suit land as at the date of the order until the final hearing and determination of the suit
  2. 2.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 40 Rule 1; Order 51 Rule 1

Cases cited (3)

  • Giella -Vs- Cassman Brown
    1973 E.A 358
  • James Macharia Mwangi -Vs- Molo Town Council & 2 Others
    Nakuru Cmcc No.477 Of 2004
  • Nakuru Miscellaneous Application No.79 Of 2012 (J.R)
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act; Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules

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 Macharia Mwangi v Kenya Railway Corporation & another [2021] KEELC 979 (KLR)", Case Analysis (2021). Application dated 7th September 2021 (suit over PLOT NO.533/678 MOLO TOWNSHIP). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/979/eng@2021-11-17

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