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ELCDismissedNot stated in the extract provided· [2022] KEELC 388 (KLR)

Avalanche Investment Group Ltd v Administrators of the Estate of John Makuthi Kathumba [2022] KEELC 388 (KLR)

Environment and Land Court
24 February 2022
MMM.D. Mwangi
914 words in judgment
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The bottom line

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A landowner whose title had been revoked could not stop people on the land, because Kenyan courts require a valid right before granting any injunction.

What this practically means

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Executive summary

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The Plaintiff, Avalanche Investment Group Limited, moved the court by Notice of Motion dated 27th August 2021 seeking a temporary injunction restraining the Defendants/Respondents from evicting, demolishing, excavating, chasing away its security guards or otherwise interfering with the suit property, Title No. 9092/1 (I.R 103055), pending the hearing of the main suit. The application was supported by the affidavit of Abdi Abdifatah Muhumed and a supplementary affidavit. The Respondents opposed, describing themselves as genuine squatters on L.R No. 7075/3 since 1953 whose status had been recognised by the National Land Commission, which in a report dated 21st January 2019 recommended that Kenya Airports Authority compensate and resettle them; they asserted that the Applicant's title had been revoked. The court identified a single issue: whether the Applicant had made out a case for a temporary injunction. Applying the settled Giella v Cassman Brown principles as restated sequentially in Nguruman Limited v Jan Bonde Nielsen, and Mrao's definition of a prima facie case, the court found that the Applicant's title had been revoked by Gazette Notice No. 1549 - an admission made in its own supplementary affidavit - leaving it without a subsisting right capable of infringement. The Applicant failed to establish a prima facie case, and the court did not consider irreparable injury or balance of convenience. The application was dismissed with costs to the Respondents on 24th February 2022.

Key legal issues

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01

Whether the Applicant established a prima facie case with a probability of success

Holding

No - the Applicant's title to the suit property was revoked by Gazette Notice No. 1549, an admission repeated in its supplementary affidavit, so it has no subsisting right capable of infringement

Reasoning

The Applicant claimed ownership of Title No. 9092/1 (I.R 103055) as registered lessee. However, its title was revoked by Gazette Notice No. 1549, a fact the Applicant admitted in paragraph 12 of its supplementary affidavit, further stating that only Kenya Airports Authority could deal with the premises. A revoked title is non-existent and confers no right that the Respondents could have infringed. Applying Mrao's definition of a prima facie case, no apparently infringed right exists.

p. 2
02

Whether irreparable harm and balance of convenience fell for consideration

Holding

No - having failed at the first hurdle, the sequential application of the Nguruman test means the court need not consider the remaining limbs

Reasoning

The Court of Appeal in Nguruman held that the Giella conditions are separate, distinct and logical hurdles to be surmounted sequentially. Since the Applicant failed to demonstrate a prima facie case with a probability of success, the court properly stopped there and did not proceed to consider irreparable injury or the balance of convenience.

p. 2

Legal principles established

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  • The Giella v Cassman Brown principles govern the grant of temporary injunctions: prima facie case, irreparable injury not compensable by damages, and balance of convenience if in doubt
  • Per Nguruman, the injunction conditions are sequential hurdles; if no prima facie case is established, the other limbs need not be considered

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 27th August 2021 is dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Gazette Notice No. 1549Revocation of the Applicant's title to the suit property

Cases cited (3)

  • Giella Vs Cassman Brown & Co. Ltd
    (1973) E.A 358
  • Nguruman Limited Vs Jan Bonde Nielsen & 2 Others
    (2014) eKLR
  • Mrao Vs First American Bank of Kenya & 2 Others
    (2003) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit property dispute (interlocutory application in a main 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, "Avalanche Investment Group Ltd v Administrators of the Estate of John Makuthi Kathumba [2022] KEELC 388 (KLR)", Case Analysis (2022). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/388/eng@2022-02-24

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