Tuesday Gichuki & 3 others v South-End Properties Limited & 3 others [2022] KEELC 1609 (KLR)
The bottom line
#A Nairobi court dismissed flat owners' bid to block construction and subdivision on their estate because they could not prove they owned more than their individual units.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established a prima facie case for a temporary injunction
They did not. Their averments that they purchased the entire LR NO 209/10775 were not supported by documents of title and the 1st Defendant's contrary averments were not controverted.
The Plaintiffs claimed ownership of sectional properties under subleases and asserted rights over the whole parcel LR NO 209/10775. The 1st Defendant deponed that the Plaintiffs never had any proprietary or enforceable right over the entire property and only acquired subleases of flats in phase one. Those averments went uncontroverted, and the Plaintiffs produced no title documents or endorsement of their leases on the head title, so no prima facie case was established.
Whether a mandatory injunction to demolish structures erected by the 4th Defendant should issue
No. No special circumstances were demonstrated and the case was not clear enough to be decided at once.
Citing Locabail International Finance Ltd vs Agroexport as approved in Kenya Breweries Ltd vs Washington O. Okeyo and Nation Media Group vs John Harun Mwau, the court held that a mandatory interlocutory injunction requires special circumstances and a higher degree of assurance than a prohibitory injunction. The Plaintiffs failed to demonstrate any special circumstances and their case was not one that ought to be decided at once.
The 4th Defendant's position as registered proprietor of LR NO 209/21709
The court found the 4th Defendant to be the registered owner of the subdivision, consistent with the Plaintiffs' own confirmation of the subdivision.
The 4th Defendant exhibited a certificate of title showing registration as lessee from the Government of Kenya on 7th December 2017 and claimed to be an innocent purchaser for value without notice. The Plaintiffs themselves confirmed that the suit property had been subdivided and a Deed Plan registered, which the court found consistent with the 4th Defendant's assertion of registered ownership of LR NO 209/21709.
Legal principles established
#- An applicant for an interlocutory injunction must establish a prima facie case with a probability of success, per the Giella vs Cassman Brown principles.
- An applicant for an injunction must make full disclosure of relevant facts and show a legal or equitable right requiring protection.
- A mandatory interlocutory injunction requires special circumstances and a higher degree of assurance than a prohibitory injunction.
Court orders
#- 1.The Notice of Motion dated 8th April 2019 (as amended on 9th December 2019) is dismissed for lack of merit.
- 2.The Plaintiffs/Applicants are at liberty to amend the Plaint to reflect the Land Reference Numbers upon sub-division.
- 3.Costs of the application to abide the outcome of the main suit.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit property LR NO 209/10775 and its subdivisions (specific statutory basis not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tuesday Gichuki & 3 others v South-End Properties Limited & 3 others [2022] KEELC 1609 (KLR)", Case Analysis (2022). Not stated in the judgment excerpt (Notice of Motion dated 8th April 2019, amended 9th December 2019, and Notice of Motion dated 11th December 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1609/eng@2022-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.