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ELCDismissedNotice of Motion application dated 2nd May, 2019 (suit land NGONG/NGONG/755)· [2021] KEELC 2838 (KLR)

Lucy Njeri K. Kiambua & another v Joseph Gakami Ndungi [2021] KEELC 2838 (KLR)

Environment and Land Court
21 June 2021
COCHRISTINE OCHIENG
1,666 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed landowners' injunction bid because they hid a 2008 sale and took payment, so they lacked clean hands.

What this practically means

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Executive summary

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The Plaintiffs moved the court by Notice of Motion dated 2nd May 2019 under Order 51 and Order 40 Rule 1 of the Civil Procedure Rules seeking a temporary injunction restraining the Defendant from cultivating, building, mining or interfering with land parcel NGONG/NGONG/755 pending determination of the suit. They asserted they were the registered proprietors, that the 1st Plaintiff had agreed in a Sale Agreement dated 5th July 2008 to sell only two acres to the Defendant, and that the Defendant had breached that agreement, entered the entire parcel without consent and was wasting it. The Defendant countered that he bought two acres from the 1st Plaintiff and paid the full purchase price by 27th April 2010, bought one acre from the 2nd Plaintiff under a 2011 agreement, was permitted into the land pending transfer after confirmation of a grant, and that the Plaintiffs refused to transfer or refund him; he also noted a discrepancy between the titled six acres and the 3.5 acres on the ground. The court, applying Giella v Cassman Brown and the Mrao definition of a prima facie case, found the sale agreements and payment acknowledgments showed a genuine transaction with consideration received. It found the Plaintiffs not candid: they could not explain the Defendant's occupation since 2008, the delay in suing until 2019, the absence of a refund, or who was responsible for the missing Land Control Board consent. Injunctive relief being equitable, the Plaintiffs failed the clean hands requirement. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case with probability of success warranting a temporary injunction

Holding

No prima facie case was established; the Plaintiffs were found not candid given the 2008 sale transactions, receipt of consideration, and their conduct in obtaining a fresh title without disclosing the Defendant's custody of the original title

Reasoning

The court applied the Giella v Cassman Brown principles and the Mrao definition of a prima facie case. Examining the sale agreements and payment acknowledgments, it found a real transaction with consideration received by the Plaintiffs. The Plaintiffs could not explain the Defendant's occupation since 2008, the delay in filing suit until 2019, their failure to refund the purchase price, and who bore responsibility for the missing Land Control Board consent. Their conduct amounted to approaching the court without clean hands.

p. 2

Legal principles established

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  • A party seeking an injunction, being an equitable remedy, must come to court with clean hands
  • Where an applicant fails to prove a prima facie case, the court need not consider the other Giella limbs

Court orders

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  1. 1.The Notice of Motion application dated 2nd May, 2019 is dismissed
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (7)

  • Giella Vs Cassman Brown Company Limited
    (1973) EA 358
  • Robert Mugo Wa Karanja V Ecobank (Kenya) Limited & Another
    (2019) eKLR
  • Insurance Company of East Africa Vs Attorney General & 3 Others
    HCCC No. 135 of 1998
  • Joseph Mbugua Gichanga V Cooperative Bank of Kenya Ltd
    (2005) eKLR
  • Nguruman Limited V Jan Bonde Nielsen & 2 Others
    CA No. 77 of 2012
  • Willy Kimutai Kitilit V Michael Kibet
    (2018) eKLR
  • Mrao Limited Vs. First American Bank of Kenya Limited & 2 others
    (2003) KLR 125
Jurisdiction invoked
Order 51 and Order 40 Rule 1 of the Civil Procedure Rules (interlocutory injunction 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, "Lucy Njeri K. Kiambua & another v Joseph Gakami Ndungi [2021] KEELC 2838 (KLR)", Case Analysis (2021). Notice of Motion application dated 2nd May, 2019 (suit land NGONG/NGONG/755). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2838/eng@2021-06-21

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