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ELCAllowedELC Case (Notice of Motion dated 23rd December 2020), Kerugoya· [2021] KEELC 2102 (KLR)

Douglas Mwai Machuru v Daniel Karimi Wanjohi [2021] KEELC 2102 (KLR)

Environment and Land Court
23 July 2021
1,836 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner froze a disputed land transfer through an injunction, even though the other side never showed up to defend the claim.

What this practically means

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Executive summary

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The Applicant, an elderly man of 78 years, moved the Environment and Land Court at Kerugoya by Notice of Motion dated 23rd December 2020 seeking a temporary injunction restraining the Respondent from charging, transferring, disposing of, alienating or in any manner interfering with title L.R. No. Mwerua/Baricho/1635, a 3-acre subdivision of the original parcel Mwerua/Baricho/224, pending determination of the application and the main suit. The Applicant deponed that he had agreed with an advocate, Antony Kahuthu, for the lifting of a long-standing caution on the original parcel, its subdivision, and the sale of one subdivision for value to settle legal fees and his upkeep. He alleged that the Respondent, who worked as a clerk in the advocate's office, fraudulently procured registration of the 3-acre parcel to himself without paying any consideration, and later tricked him and his family members into signing documents suggesting full payment. The application was unopposed; the Respondent filed no response despite service. The court, per E.C. Cherono, ELC Judge, held that even an unopposed application must meet the required standard, and applied the Giella v Cassman Brown principles as restated in Nguruman and the Mrao definition of a prima facie case. Finding the sworn averments uncontroverted, the court held a prima facie case and irreparable injury were established and had no doubt in applying the third ground. The application was allowed as prayed, with an injunction issuing until determination of the suit, and costs awarded to the Applicant.

Key legal issues

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01

Whether a temporary injunction should issue over L.R. No. Mwerua/Baricho/1635

Holding

The Applicant established a prima facie case and irreparable injury; injunction granted as prayed

Reasoning

The Applicant deponed he was the registered owner of the original parcel which was subdivided pursuant to an agreement with an advocate; the Respondent, the advocate's clerk, allegedly procured registration of one subdivision to himself fraudulently and without consideration. These sworn averments were uncontroverted as the Respondent filed no response despite service. Having established the first two Giella principles, the court found no doubt in applying the third.

p. 2
02

Whether an unopposed application must still satisfy the legal threshold

Holding

Yes; the court must satisfy itself the applicant has made out his case to the required standard even without opposition

Reasoning

The court held that despite the absence of a replying affidavit or grounds of opposition, it remains under an obligation to ensure the applicant has made out his case on the required standard before granting relief. The application was therefore decided on its merits, applying the Giella criteria to the affidavit evidence and annexures rather than granting it merely because it was unopposed.

p. 2

Legal principles established

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  • An applicant for an interlocutory injunction must satisfy the three Giella principles sequentially
  • A prima facie case in civil matters is one where an apparent legal right has been infringed calling for an explanation or rebuttal

Court orders

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  1. 1.Temporary injunction issued against the Respondent, his agents, servants and employees from charging, transferring, disposing, alienating or in any manner interfering with title L.R. No. Mwerua/Baricho/1635 pending determination of the suit
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Land Registration ActSection 26
  • Land Registration ActSection 80

Cases cited (3)

  • Giella Versus Cassman Brown Co. Ltd
    (1973) E.A 358
  • Nguruman Limited Versus Jan Bonde Nielsen & 2 Others
    C.A No. 77 of 2012 (2014) e KLR
  • Mrao Ltd Versus First American Bank of Kenya Ltd
    (2003) e KLR
Jurisdiction invoked
Environment and Land Court original jurisdiction over land disputes (unspecified provision in judgment)

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, "Douglas Mwai Machuru v Daniel Karimi Wanjohi [2021] KEELC 2102 (KLR)", Case Analysis (2021). ELC Case (Notice of Motion dated 23rd December 2020), Kerugoya. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2102/eng@2021-07-23

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