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ELCDismissedNotice of motion dated 9th October, 2020· [2021] KEELC 3224 (KLR)

Lucy Nyaguthi Mugo v Zumzum Investment Ltd [2021] KEELC 3224 (KLR)

Environment and Land Court
19 May 2021
CYC.K. Yano
1,654 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to protect a land title obtained while the property was under court orders, warning that such transfers confer no legal rights.

What this practically means

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Executive summary

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This was a ruling on the plaintiff's notice of motion dated 9th October 2020 seeking a temporary injunction to restrain the defendant from evicting her from SUBDIVISION NO.7996/II/MN, plus a direction to the County Commander of Kisauni Police Station to enforce any orders granted. The plaintiff, who relied on a transfer and postal search showing her as registered absolute proprietor since 2015, argued she had enjoyed quiet possession and developed the property, and that damages would not adequately compensate her. The defendant opposed through grounds of opposition and a replying affidavit of its chairman and director, Abdulkarim Saleh Muhsin, contending that the transfer was executed on 13th October 2015 by directors who were subject to court orders of 17th December 2014 (confirmed by Njoki Mwangi J on 18th October 2019) restraining disposal of the company's properties, and that the transaction was therefore illegal, contemptuous and in breach of the doctrine of lis pendens, vesting no right capable of protection. Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, the court found the restraining orders had not been set aside and the transfer contravened lis pendens; the plaintiff thus had no prima facie case with probability of success, and any harm was compensable in damages. The application was dismissed with costs.

Key legal issues

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01

Whether the plaintiff established a prima facie case for a temporary injunction

Holding

No - the plaintiff's title was procured while restraining orders were in force, so she failed the Giella test

Reasoning

The court observed that although the plaintiff exhibited a transfer and postal search confirming registration, the transfer was executed on 13th October 2015 by directors who were restrained by orders of 17th December 2014, confirmed on 18th October 2019, with no evidence of setting aside. The transaction offended lis pendens and the defendant's uncontroverted averments established the illegality, defeating any prima facie case.

p. 2
02

Whether damages would be an adequate remedy

Holding

Yes - the value of the property and developments could be ascertained

Reasoning

The court held that any harm to the plaintiff was quantifiable since the value of the suit property and the development thereon could be ascertained, hence no irreparable loss. This is the second limb of the Giella test and independently justified refusal of the injunction.

p. 2

Legal principles established

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  • The Giella v Cassman Brown principles govern the grant of interlocutory injunctions: prima facie case with probability of success, irreparable loss, and balance of convenience if in doubt
  • A title procured in contravention of subsisting court orders and the doctrine of lis pendens confers no right capable of protection by injunction
  • Definition of a prima facie case in civil matters

Court orders

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  1. 1.The notice of motion dated 9th October, 2020 is dismissed
  2. 2.Costs of the application to the defendant

Authorities

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Cases cited (3)

  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    (2003) eKLR
  • Abdulkarim Saleh Muhsin v Nedi Mohamed Ibrahim & 3 Others
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit property (interlocutory application in a pending suit)

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 Nyaguthi Mugo v Zumzum Investment Ltd [2021] KEELC 3224 (KLR)", Case Analysis (2021). Notice of motion dated 9th October, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3224/eng@2021-05-19

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