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ELCDismissedBungoma Environment and Land Court Case (Notice of Motion dated 18th September 2017; suit plaint dated 14th September 2017) - number not stated in judgment· [2021] KEELC 3139 (KLR)

Joseph Mukonyi Gibendi v Moses Ugusimba & another [2021] KEELC 3139 (KLR)

Environment and Land Court
27 May 2021
BOBoaz N. Olao
2,675 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner in Bungoma lost his injunction bid because his own earlier court filings admitted selling the very land he claimed was invaded.

What this practically means

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Executive summary

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By Notice of Motion dated 18th September 2017 under Order 40 Rule 1 and Section 3A of the Civil Procedure Act, the plaintiff, registered proprietor of land parcels EAST BUKUSU/SOUTH NALONDO/4691 and 4692, sought a temporary injunction restraining the defendants from transferring, wasting, alienating, trespassing on, selling, utilising or developing the suit land pending trial, alleging they had illegally curved off 50 x 100 feet portions. The 1st defendant opposed, deponing that on 17th April 2015 he purchased a 50 x 100 feet portion from the plaintiff out of parcel No. 4693 for Kshs. 400,000/=, took possession, and developed it including sinking a borehole; he annexed the sale agreement and the plaint in Bungoma ELC Case No. 90 of 2015, in which the plaintiff himself pleaded that he had sold portions to both defendants out of parcel No. 4693. Applying the Giella v Cassman Brown principles, Olao J held that although the plaintiff is the registered and indefeasible proprietor, he failed to establish a prima facie case: his prior pleadings showed he sold the defendants their portions, so he cannot approbate and reprobate, and he did not come to court with clean hands. Since the Giella tests are applied sequentially, failure at the first limb meant the application collapsed. The motion was dismissed with costs to the 1st defendant only; the parties were each directed to pay the Kshs. 1,000/= adjournment fees imposed by Mukunya J on 21st February 2018 within 7 days, and to appear before the Deputy Registrar on 3rd June 2021 for compliance and fixing a hearing date. The ruling was delivered at Bungoma by electronic mail on 27th May 2021.

Key legal issues

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01

Whether the plaintiff established a prima facie case for an interlocutory injunction

Holding

No prima facie case was established because the plaintiff's own pleadings in Bungoma ELC Case No. 90 of 2015 admitted selling portions to the defendants out of parcel No. 4693, and his averment that they entered the suit land without authority was unrebutted in part and inconsistent

Reasoning

The 1st defendant produced a sale agreement dated 17th April 2015 showing purchase of a 50 x 100 feet portion from parcel No. 4693 for Kshs. 400,000/=, took possession and developed it. The plaintiff had sued his own sons to enable him transfer land to buyers, including the defendants. The plaintiff cannot approbate and reprobate. The defendants therefore do not occupy the land illegally, and no right of the plaintiff is threatened with violation.

p. 3
02

Whether the court should proceed to irreparable injury and balance of convenience

Holding

No - the Giella tests are sequential and failure on the first limb disposes of the application

Reasoning

Relying on Nguruman v Jan Bonde Nielsen and Gesa Building and Civil Engineering Ltd, the court held that once no prima facie case is established, the remaining limbs need no consideration and the application collapses.

p. 3

Legal principles established

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  • The Giella principles must be considered sequentially; failure at the first step (prima facie case) ends the inquiry
  • An interlocutory injunction is an equitable remedy requiring clean hands
  • A party cannot approbate and reprobate - pleadings in prior proceedings are binding against inconsistent later averments

Court orders

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  1. 1.The Notice of Motion dated 18th September 2017 is dismissed with costs to the 1st defendant
  2. 2.The 2nd defendant, having filed no response, is not entitled to any costs
  3. 3.Each party to pay the Kshs. 1,000/= court adjournment fees directed on 21st February 2018 within 7 days of the ruling, failing which the Court will consider other recovery options
  4. 4.Parties to appear before the Deputy Registrar on 3rd June 2021 to confirm compliance and fix a hearing date

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 40 Rule 1
  • Land Registration ActSection 25

Cases cited (5)

  • GIELLA .V. CASSMAN BROWN & CO LTD
    1973 E.A 358
  • MRAO .V. FIRST AMERICAN BANK OF KENYA LTD & OTHERS
    C.A CIVIL APPEAL No 39 of 2002 [2003 eKLR]
  • NGURUMAN .V. JAN BONDE NIELSEN & OTHERS
    C.A CIVIL APPEAL No 77 of 2012; also cited as NGURUMAN LTD .V. JAN BONDE NIELSEN & OTHERS 2014 eKLR
  • FILMS ROVER INTERNATIONAL LTD .V. CANNON FILMS SALES LTD
    1986 3 ALL. E.R 772
  • GESA BUILDING AND CIVIL ENGINEERING LTD .V. GEORGE NGURE CHIRA & ANOTHER
    C.A CIVIL APPEAL No 49 of 2013 [2019 eKLR]
Jurisdiction invoked
Order 40 Rule 1 and Section 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Mukonyi Gibendi v Moses Ugusimba & another [2021] KEELC 3139 (KLR)", Case Analysis (2021). Bungoma Environment and Land Court Case (Notice of Motion dated 18th September 2017; suit plaint dated 14th September 2017) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3139/eng@2021-05-27

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