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ELCPartially AllowedNot stated in the judgment extract (Notice of Motion dated 13th July 2021)· [2022] KEELC 756 (KLR)

Hezron Kamau Gichuru v Kianjoya Etrprises Ltd & another [2022] KEELC 756 (KLR)

Environment and Land Court
17 March 2022
LOL. A. Omollo
4,028 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Nakuru court protected a landowner's use of six Mbaruk plots with a temporary injunction, but refused to remove a caution until full trial.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (L. A. Omollo, J) determined a Notice of Motion dated 13th July 2021 by the Plaintiff, the registered owner of six parcels in Miti Mingi/Mbaruk Block 8 (Kianjoya 'D'), seeking a temporary injunction restraining interference with his use of the land and a mandatory injunction compelling the Land Registrar to remove a caution placed by the 1st Defendant company claiming beneficial interest since 1998. The 1st Defendant opposed, contending it was the registered owner of Block 8, that the Applicant's title chain was irregular and that the Ministry of Lands had advised it to place a restriction to protect its interest. The court framed three issues: temporary injunction, mandatory injunction at the interlocutory stage, and costs. Applying the Giella v Cassman Brown principles as reiterated in Nguruman, the court found the Applicant had demonstrated a prima facie case through his title documents, irreparable injury through the stalled sale and threatened litigation, and balance of convenience in his favour as an innocent purchaser for value, and granted the temporary injunction preserving the status quo. However, applying Joseph Kaloki and Shariff Abdi Hassan, the court declined the mandatory injunction to lift the caution, holding no special circumstances existed and the competing root-of-title claims required full trial. Costs of the application were awarded to the Plaintiff under section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the Applicant established a prima facie case, irreparable injury and balance of convenience for a temporary injunction

Holding

The court found the Plaintiff demonstrated all three Giella criteria and granted the temporary injunction

Reasoning

The Plaintiff produced title documents for the suit parcels. The court found the inability to develop the land and threatened litigation from a purchaser after a caution blocked transfer demonstrated irreparable injury. Since the root of title had not been interrogated, the court found a lower risk of injustice in granting the injunction and maintaining the status quo pending full hearing.

p. 5
02

Whether a mandatory injunction to lift the caution could issue at the interlocutory stage

Holding

Refused; no special circumstances and the competing claims require full trial

Reasoning

Relying on Joseph Kaloki t/a Royal Family Assembly v Nancy Atieno Ouma and Shariff Abdi Hassan v Nadhif Jama Adan, the court held mandatory injunctions are granted at interlocutory stage only in clear cases or special circumstances. Competing claims over root of title required further interrogation, so the court could not confirm the caution was baseless.

p. 6
03

The proper mode of instituting an action for lifting a caution

Holding

Originating summons is not mandatory; a plaint or application in a pending suit suffices

Reasoning

Order 37 Rule 8 exempts Part VII of the Land Registration Act (cautions) from the originating summons requirement. Since a suit was pending and the same prayers were sought in the plaint, the application was properly before the court, rejecting the 1st Defendant's defect argument.

p. 6

Legal principles established

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  • An application for lifting a caution under the Land Registration Act is exempt from institution by originating summons; it may be brought by plaint or by application in a pending suit
  • A mandatory injunction may be granted at the interlocutory stage only in special circumstances or where the case is clear and ought to be decided at once

Court orders

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  1. 1.Pending the hearing and determination of this suit, a temporary injunction was issued restraining the Respondents, their servants, agents, proxies and persons exercising authority from them, from inhibiting, alienating, dealing, disposing, trespassing or otherwise interfering with the Plaintiff's quiet use, occupation and possession of parcels MITI MINGI/MBARUK BLOCK 8/1373, 8/1375, 8/2548, 8/2549, 8/2550 and 8/2551 (KIANJOYA 'D')
  2. 2.The prayer for a mandatory injunction compelling the 2nd Defendant/Respondent to remove the caution on the suit parcels was declined
  3. 3.Costs of the application awarded to the Plaintiff/Applicant
Jurisdiction invoked
Original civil jurisdiction over land disputes; Civil Procedure Act (Order 40) and Land Registration Act, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Hezron Kamau Gichuru v Kianjoya Etrprises Ltd & another [2022] KEELC 756 (KLR)", Case Analysis (2022). Not stated in the judgment extract (Notice of Motion dated 13th July 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/756/eng@2022-03-17

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