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ELCDismissedNot stated in the judgment as provided· [2021] KEELC 1274 (KLR)

Barnabas Asembo Okech v Nairobi City County & 2 others [2021] KEELC 1274 (KLR)

Environment and Land Court
21 October 2021
LKL. Komingoi
747 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 on the plaintiff's Notice of Motion dated 10th March 2021, brought under sections 1A, 1B and 3A of the Civil Procedure Act and Orders 40 and 51 of the Civil Procedure Rules, 2010, seeking a temporary injunction to restrain the defendants from demolishing, disposing of or interfering with land reference number 209/21868 (Title No. IR 224438) near Pumwani Maternity Hospital, or alternatively maintenance of status quo pending inter partes hearing. The plaintiff, Barnabas Asembo Okech, claimed to be the registered proprietor in possession since 2004. The 1st defendant, the County Government of Nairobi, denied allocating the property to him, through a replying affidavit sworn by its County Solicitor, Erick Odhiambo Obwao; the 2nd and 3rd defendants also filed replying affidavits. The court canvassed the application by written submissions and framed two issues: whether the application met the injunction threshold, and costs. Applying Giella v Cassman Brown and Mrao Ltd, and Kenleb Consolidated, the court found the plaintiff had annexed only a certificate of title issued on 4th November 2020 and an allotment letter, with no evidence of how he acquired the property. It also noted the house had been demolished on 11th June 2021, so the application was overtaken by events. The motion was dismissed with costs abiding the outcome of the main suit. Judgment delivered by L. Komingoi J on 21st October 2021 in Nairobi.

Key legal issues

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01

Whether the plaintiff met the threshold for a temporary injunction

Holding

The application failed; the plaintiff did not establish a prima facie case, having adduced no evidence of how he acquired the suit property beyond a certificate of title and allotment letter, and the application had been overtaken by events

Reasoning

The court applied the Giella v Cassman Brown principles and the definition of a prima facie case in Mrao Ltd v First American Bank. Relying on Kenleb Cons. Ltd v New Gatitu Services, it held the applicant must fully disclose relevant facts and demonstrate a right requiring protection. The plaintiff's word stood against the 1st defendant's denial of allocation, and the house had already been demolished on 11th June 2021, mooting part of the relief.

p. 2

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, on the Giella v Cassman Brown principles
  • An applicant for an injunction must make full disclosure of all relevant facts and show a right, legal or equitable, requiring protection

Court orders

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  1. 1.The Notice of Motion dated 10th March 2021 is dismissed
  2. 2.Costs to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21 Laws of KenyaSections 1A, 1B and 3A
  • Civil Procedure Rules, 2010Orders 40 and 51

Cases cited (3)

  • Giella vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Kenleb Cons. Ltd vs New Gatitu Services Ltd & Another
    [1990] KLR 557
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and Orders 40 and 51 of the Civil Procedure Rules, 2010

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, "Barnabas Asembo Okech v Nairobi City County & 2 others [2021] KEELC 1274 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1274/eng@2021-10-21

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