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ELCPartially AllowedNot stated in judgment· [2022] KEELC 1692 (KLR)

Henry Kipkorir Kimutai v Gajjars and Company & 2 others [2022] KEELC 1692 (KLR)

Environment and Land Court
2 February 2022
645 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi land court froze dealings with a disputed plot for one year, but only because the other side couldn't explain its own use of the property.

What this practically means

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Executive summary

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The court, per Lucy N. Mbugua J, determined a Notice of Motion dated 14 April 2021 in which the Applicant/Plaintiff, administrator of the estate of Jeremiah Kimutai Cheruiyot, sought a temporary injunction restraining the Respondent from dealing with the suit parcel Nairobi Block 93/1512 pending hearing and determination of the suit. The Applicant asserted that the deceased was allotted the land, took immediate possession and erected a restaurant known as Nerkwo Inn, but died in 2019 before the lease was registered in his name. The 1st Respondent/1st Defendant opposed, contending that the Applicant's ownership documents were forgeries, that it was the legitimate owner paying land rates, and produced a letter of allotment dated 7 August 1995, asserting the land was allocated to its company on 16 June 1995. The Attorney General (2nd and 3rd Respondents) filed no documents. The court confined itself to the Giella v Cassman Brown interlocutory criteria, expressly declining to determine disputed facts with finality. Noting that each party held rival documents of title, that the Applicant asserted occupation and business use of the premises, and that the 1st Defendant had not outright denied that utilization nor explained its own use of the land since 1995, the court allowed the application for a period of one year, with costs to abide the outcome of the suit. Judgment dated 2 February 2022, delivered at Nairobi via Microsoft Teams.

Key legal issues

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01

Whether the Applicant satisfied the Giella v Cassman Brown criteria for a temporary injunction

Holding

The application was allowed for one year because the parties held rival documents of title, the Applicant asserted occupation running a restaurant on the premises, and the 1st Defendant did not deny that occupation nor explain its own use of the land since 1995

Reasoning

Each party claimed lawful ownership with rival documents. The Applicant stated he carried on business of a restaurant on the premises; the 1st Defendant challenged the licence's reference to the parcel but did not outright deny the Applicant's utilization, nor state the nature and extent of its own utilization since 1995. On that prima facie position, the court inclined to allow the injunction, limited to one year, with costs to abide the suit.

p. 2

Legal principles established

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  • At the interlocutory stage the court does not determine disputed facts with finality but applies the Giella v Cassman Brown criteria

Court orders

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  1. 1.Application dated 14.4.2021 allowed for a period of one year (temporary injunction restraining the Respondent from dealing with the suit parcel Nairobi Block 93/1512)
  2. 2.Costs of the application to abide the outcome of the suit

Authorities

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Cases cited (5)

  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • Rukaya Ali Vs. David Gikonyo Nambacha & Another
    Kisumu HCCA No. 9 of 2002
  • Titus Musya Musee vs Francis Ichamui M'Mwenda
    (2020) eKLR
  • Chemei Investment Ltd. Vs. The Attorney General & others
    Nairobi Petition No. 94 of 2005
  • Dr. Joseph Arap Ngok vs. Justice Moijo Ole Keiwua & 5 Others
    Civil Appeal No. Nai 60 of 1997
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to grant interlocutory injunctions under the Giella v Cassman Brown criteria

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, "Henry Kipkorir Kimutai v Gajjars and Company & 2 others [2022] KEELC 1692 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1692/eng@2022-02-02

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