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ELCDismissedNotice of Motion dated 12th March 2021· [2021] KEELC 2527 (KLR)

Priscilla Muthoni Njagi v Irene Kuthii Gatua & another [2021] KEELC 2527 (KLR)

Environment and Land Court
18 June 2021
ECE.C. Cherono
4,458 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The court refused to stop the respondent from using the disputed land because the buyer herself admitted it was part of a deceased person's estate and put a money value on her losses.

What this practically means

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Executive summary

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The applicant, Priscilla Muthoni Njagi, moved the Environment and Land Court at Kerugoya by Notice of Motion dated 12th March 2021 under Section 68(1) of the Land Registration Act, Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 40 and 51 of the Civil Procedure Rules, seeking interlocutory injunctions restraining the 1st respondent, Irene Kuthii Gatua, from harvesting, accessing or interfering with 2 acres of land parcel NGARIAMA/RUNGETO/544 pending inter-parties hearing of her application. The applicant claimed she purchased the 2 acres under agreements of 16th June 1997 and 13th November 2014, took possession and planted tea and coffee, and that the 1st respondent and her agents had since February 2020 destroyed crops and harvested the produce. The 1st respondent opposed, asserting the land allotted to the applicant was parcel 545; that the alleged 2014 agreement was fraudulent, the Ksh. 253,100 payment being a loan; and that ownership of parcel 544 was determined in Embu Succession Cause No. 161 of 1994. The 2nd respondent supported the applicant. Applying Giella v Cassman Brown as restated in Nguruman Limited, the court found the applicant failed to establish a prima facie case, given her own admission that the suit property forms part of a deceased's estate, Land Control Act concerns, and the apparent prior determination of ownership in the succession cause. The applicant also failed the irreparable injury pillar, having quantified her losses and sought compensation. The application was dismissed with costs to the 1st respondent.

Key legal issues

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01

Whether the applicant established a prima facie case

Holding

No prima facie case was established: the suit property forms part of a deceased's estate, raising Land Control Act and intermeddling concerns, and ownership was apparently determined in Embu Succession Cause No. 161 of 1994

Reasoning

The court noted the applicant's own deposition that the suit property forms part of a deceased estate, raising doubt whether the respondents could lawfully transact. The court invoked Section 8 of the Land Control Act on the six-month consent requirement, and noted the 1st respondent's assertion that a competent court in Succession Cause No. 161 of 1994 determined ownership, raising res judicata. These weighty issues pointed to the applicant not establishing a prima facie case.

p. 6
02

Whether the applicant demonstrated irreparable injury

Holding

No: the applicant quantified her damages and sought compensation, showing damages would be an adequate remedy

Reasoning

The applicant herself deposed that she lost income of Ksh. 80,000/= and Ksh. 150,000/= from tea and coffee and sought an order for compensation/refund of the value of the land. Having quantified her losses, she demonstrated that damages would be an adequate remedy, defeating the second Giella pillar. Since the first two principles failed, balance of convenience did not arise.

p. 6

Legal principles established

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  • The three Giella v Cassman Brown pillars are sequential hurdles: prima facie case, irreparable injury not adequately compensable by damages, and balance of convenience

Court orders

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  1. 1.The Notice of Motion dated 12th March 2021 is dismissed
  2. 2.Costs of the application awarded to the 1st respondent

Authorities

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Legislation

  • Land Registration ActSection 68(1)
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 40, Order 51
  • Land Control Act (Cap. 302)Section 8
  • Law of Succession ActSection 82(b)

Cases cited (3)

  • Giella Vs Cassman Brown and Company Limited
    (1973) E.A 358
  • Nguruman Limited Vs Jan Bonde Nielsen & 2 Others
    (2014) e K.L.R
  • Kenya Commercial Finance Co. Ltd Vs Afraha Education Society
    (2001) Vol. 1 E.A 86
Jurisdiction invoked
Section 68(1) Land Registration Act, 2012; Sections 1A, 1B and 3A Civil Procedure Act; Order 40 and 51 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, "Priscilla Muthoni Njagi v Irene Kuthii Gatua & another [2021] KEELC 2527 (KLR)", Case Analysis (2021). Notice of Motion dated 12th March 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2527/eng@2021-06-18

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