Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment as provided· [2022] KEELC 1275 (KLR)

Allan Wachira Mwangi v Macharia Gatiba & another [2022] KEELC 1275 (KLR)

Environment and Land Court
24 February 2022
MOMOGENI
806 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A Nairobi court froze all dealings on a disputed Embakasi plot after a buyer showed documented ownership and active construction threatened his claim.

What this practically means

#

Executive summary

#
This was an unopposed Notice of Motion dated 5 November 2021 by the plaintiff, Allan Wachira Mwangi, seeking a temporary injunction against the defendants concerning Plot Number N236, MAP 7 covering LR 1094 situated within Nairobi County. The application was brought under Article 40(1) and (2) of the Constitution and Order 40 Rule 2 of the Civil Procedure Rules, 2010. The plaintiff averred that he purchased the plot in September 2009 from one Salome Njoki through Embakasi Ranching Company Limited, the second defendant, paid the requisite fees and commission, and has held uninterrupted possession since. He alleged that the first defendant trespassed on the land in 2010 and again on 3 November 2021, purporting to hold ownership documents issued by the second defendant, and that the defendants fraudulently procured a title with intent to alienate the property. The defendants were duly served but neither entered appearance nor filed a response, so the application was unopposed. Applying the Giella v Cassman Brown principles, the court found the plaintiff had established a prima facie case with a probability of success and that uncontroverted evidence showed the defendant had commenced excavation work for a permanent house, rendering harm not compensable in damages. The court noted that ownership as between the plaintiff and the first defendant could only be determined at trial. On 24 February 2022 the court issued a temporary injunction restraining the defendants and those claiming through them from trespassing, encroaching, developing, transferring, encumbering, issuing title, dealing with the plot, or altering land registry records pending the hearing and determination of the suit, and awarded the costs of the application to the plaintiff against the defendants. The relief directing enforcement by the OCS Ruai Police Station was not among the orders ultimately granted.

Key legal issues

#
01

Prima facie case

Holding

The plaintiff established a prima facie case with a probability of success, having demonstrated acquisition of the suit property on 7/09/2009 through Salome Njoki via Embakasi Ranching Company, payment of fees and commission, and taking of possession

Reasoning

The court applied the Giella v Cassman Brown principles. The plaintiff's evidence of purchase, payment of requisite fees and commission, and uninterrupted possession since 2009 was uncontroverted, as the defendants failed to enter appearance or respond. Ownership as between the plaintiff and the 1st defendant remained a matter for trial, but the applicant's documented claim sufficed at the interlocutory stage.

p. 2
02

Irreparable harm

Holding

The plaintiff would likely suffer irreparable harm not compensable in damages, since excavation work for a permanent house had commenced on the plot

Reasoning

The plaintiff placed uncontroverted evidence before the court that the defendant had already commenced excavation work with a view to constructing a permanent house. The court found preservation of the property necessary pending the hearing and determination of the suit, satisfying the second Giella principle.

p. 2

Legal principles established

#
  • An applicant for a temporary injunction must establish a prima facie case with a probability of success and irreparable harm not compensable in damages; if in doubt, the court considers the balance of convenience (Giella v Cassman Brown)

Court orders

#
  1. 1.A temporary injunction restraining the defendants, their employees, servants, agents and/or assigns or any person claiming through them from trespassing, encroaching, developing, transferring, encumbering, issuing title or dealing in any manner with Plot Number N236. MAP 7 covering LR 1094 situated within Nairobi County, or altering records at the Nairobi land registry, pending the hearing and determination of the suit
  2. 2.The costs of the application to be borne by the defendants/respondents

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 40(1) & (2)
  • Civil Procedure Act (Cap 21) Laws of KenyaOrder 40 Rule 2 of the Civil Procedure Rules, 2010

Cases cited (1)

  • Giella v. Cassman Brown & Co. Ltd
    (1973) E.A. 358
Jurisdiction invoked
Article 40(1) & (2) of the Constitution and Order 40 Rule 2 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Allan Wachira Mwangi v Macharia Gatiba & another [2022] KEELC 1275 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1275/eng@2022-02-24

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