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ELCDismissed· [2021] KEELC 1597 (KLR)

Francis Kiambi Kiriiro v Nairobi County Government; Likam Olekiambu & 5 others (Interested Parties) [2021] KEELC 1597 (KLR)

Environment and Land Court
14 October 2021
BEB M Eboso
1,546 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to protect a land buyer's plot because his evidence lacked proof of any real threat to his property interest.

What this practically means

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Executive summary

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This Environment and Land Court ruling by B M Eboso J determines the plaintiff's notice of motion dated 3/12/2020, in which Francis Kiambi Kiriiro sought interlocutory injunctions restraining the Nairobi City County Government and interested parties from selling, alienating, trespassing onto or otherwise dealing with Plot Number C3 Embakasi Township (part of LR No 2935/R, Dafur Dupoto Scheme), and restraining the 5th interested party from issuing a deed plan pending excision of 8.5 acres for him. The plaintiff's claim rests on a letter of allotment dated 23/6/2009 from the defunct Nairobi City Council. The defendant did not dispute the allotment, contending that survey was underway and that titles would issue to all allottees once complete; the 5th and 6th interested parties argued the claim was speculative and unsupported by evidence. Applying the Giella v Cassman Brown criteria, the court found the application fatally defective: the supporting affidavit purported to rely on a prior notice of motion dated 16/9/2020, which the plaintiff had himself withdrawn on 8/2/2021, and the affidavit contained no evidence of any real or continuing threat to the plaintiff's interest. The plaintiff therefore failed to demonstrate a prima facie case with a probability of success or irreparable injury. The application dated 3/12/2020 was rejected for lack of merit. The main suit remains pending. No express costs order was recorded, and the judgment was delivered virtually at Thika following the judge's transfer from Milimani.

Key legal issues

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01

Whether the plaintiff satisfied the Giella v Cassman Brown criteria for interlocutory injunctive relief

Holding

The application failed on both the prima facie case and irreparable injury limbs because the supporting affidavit was bare and relied on a notice of motion that had already been withdrawn

Reasoning

The supporting affidavit of 3/12/2020 purported to rely on a prior notice of motion dated 16/9/2020, which the plaintiff had withdrawn on 8/2/2021. The affidavit therefore contained no evidence of any threat or continuing injury to the plaintiff's interest in the suit property. Without such evidence, neither the prima facie case limb nor the irreparable injury limb of the Giella test was satisfied, and the balance of convenience did not arise.

p. 3

Legal principles established

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  • An interlocutory injunction requires a prima facie case with probability of success, irreparable injury not compensable in damages, and, in doubt, the balance of convenience
  • A bare supporting affidavit, without evidence of a real threat or continuing injury, cannot sustain an interlocutory injunction
  • At the interlocutory stage the court makes no conclusive or definitive pronouncements on the substantive issues

Court orders

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  1. 1.The plaintiff's notice of motion dated 3/12/2020 is rejected for lack of merit

Authorities

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Cases cited (1)

  • Giella v Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes; interlocutory injunctive jurisdiction

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, "Francis Kiambi Kiriiro v Nairobi County Government; Likam Olekiambu & 5 others (Interested Parties) [2021] KEELC 1597 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1597/eng@2021-10-14

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