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ELCAllowedNot stated in judgment (application dated 13/11/2020)· [2021] KEELC 3983 (KLR)

Samson Ndambo Ngugi v Anthony Muchina Kamau & another [2021] KEELC 3983 (KLR)

Environment and Land Court
11 March 2021
JKJ. G. Kemei
1,582 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court blocked the sale of family land pending trial, holding that ancestral property's emotional value means money can't fix everything.

What this practically means

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Executive summary

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The Applicant moved the court on 13 November 2020 seeking a temporary injunction to restrain the 2nd Respondent/Defendant from wasting, damaging, alienating, selling, removing or disposing of Plot No. LOC.4/Gakarara/1156/23 Kandara Market pending hearing of the suit. He deponed that the land, originally belonging to family patriarch Samson Ngigi Kamau (d. 1954), was registered in the name of Paul Kamau Ngugi & Bros to hold in trust for his siblings and the three wives/mothers of the family; that successive successions into the 1st Respondent's name were fraudulent and irregular; and that the 1st Respondent sold the land to the 2nd Respondent, a transfer encumbered by the family trust. The Respondents opposed, pointing to multiple prior suits (Succession Causes 19 of 1993, 3711 of 2004, 46 of 2017, HCCC 80 of 2005 and Succ Cause 605 of 2002), arguing res judicata/sub judice, limitation, laches, want of a prima facie case, hearsay premised on a forged letter, and that the 2nd Respondent is a bona fide purchaser for value without notice. Applying Giella v Cassman Brown, the court held that the Applicant had established a prima facie case on the affidavit evidence (including 1965 Kandara Area Council Trade and Market Committee minutes), that land rooted in family lineage may not be adequately compensated by damages, and that the balance of convenience favoured preservation of the property. The court issued a temporary injunction restraining the 2nd Respondent from wasting, damaging, alienating, selling, removing or disposing of the suit parcel pending the hearing and determination of the suit, and awarded the Applicant the costs of the application. The court expressly left contested issues of customary trust, res judicata and bona fide purchaser claims for determination at the full hearing. Dated, signed and delivered online on 11 March 2021 by J. G. Kemei, Judge.

Key legal issues

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01

Whether the Applicant established a prima facie case

Holding

Weighing the affidavit evidence, including minutes of the Trade and Market Committee of Kandara Area Council, the Applicant set out a prima facie case; contested questions of customary trust are for the trial court.

Reasoning

The court was presented with 1965 minutes showing a lease by Samson Kamau approved over the suit land and a change of name from Samson Ngugi to P. Kamau Ngugi & Sons. The Respondents argued there was no customary trust and ownership was absolute. The court held these were arguments best examined at a full hearing and, weighing the affidavit evidence, found a prima facie case established.

p. 2
02

Whether the Applicant would suffer irreparable harm not compensable by damages

Holding

Yes - land rooted in family lineage evokes emotional attachment that damages may not adequately compensate.

Reasoning

Relying on Muiruri v Bank of Baroda (Kenya) Ltd, the court noted that land disputes in Kenya evoke much emotion and, except in very clear cases, damages are not an adequate remedy. The suit property, being rooted in family lineage subject to an alleged customary trust, carried emotional attachment that may not be adequately compensated in damages.

p. 2
03

Balance of convenience and preservation of the suit property

Holding

To preserve the subject matter of the suit, the balance of convenience tilted towards granting the injunction under Order 40 Rule 1(a) and (b) of the Civil Procedure Rules.

Reasoning

The court invoked Order 40 Rule 1(a) and (b), which permits a temporary injunction where property in dispute is in danger of being wasted, damaged or alienated. Even if wrong on the first two Giella limbs, the court found preservation of the subject matter justified restraining disposal of the land pending the hearing and determination of the suit.

p. 2

Legal principles established

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  • Principles for the grant of an interlocutory injunction: prima facie case with probability of success; damages as adequate remedy; balance of convenience/balance of probabilities
  • At interlocutory stage the court does not make final findings on contested facts but weighs the relative strength of the parties' cases
  • Land rooted in family lineage carries emotional attachment that damages may not adequately compensate

Court orders

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  1. 1.A temporary injunction to restrain the 2nd Respondent/Defendant by himself, employees, agents or assigns from wasting, damaging, alienation, sale, removal or disposition of land parcel NO. LOC. 4/GAKARARA/1156/23 KANDARA MARKET pending the hearing and determination of the suit
  2. 2.The Applicant shall have the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1(a) and (b)

Cases cited (4)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Iedersachsen
    [1983] 2 Lloyd's Rep 600
  • Mrao vs First American Bank of Kenya Ltd & two others
    C.A. No. 39 of 2002 (2003 eKLR)
  • Muiruri Vs Bank of Baroda (Kenya) Limited
    (2001) KLR 183
Jurisdiction invoked
Inherent interlocutory jurisdiction under Order 40 Rule 1(a) and (b) of the Civil Procedure Rules (temporary injunction)

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, "Samson Ndambo Ngugi v Anthony Muchina Kamau & another [2021] KEELC 3983 (KLR)", Case Analysis (2021). Not stated in judgment (application dated 13/11/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3983/eng@2021-03-11

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