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ELCPartially Allowed· [2022] KEELC 2368 (KLR)

Gachanja v Ogalo & another (Environment & Land Case E273 of 2021) [2022] KEELC 2368 (KLR)

Environment and Land Court
30 June 2022
MMM.D. Mwangi
1,166 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Nairobi court froze a disputed plot as it is—occupant stays, but no building, selling, or transferring—until the full land case is heard.

What this practically means

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Executive summary

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The plaintiff, Hannah Wanjiku Gachanja, moved the Environment and Land Court at Nairobi by an Amended Notice of Motion dated February 16, 2022, brought under Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act and Article 159 of the Constitution. She sought an injunction restraining the defendants from trespassing on, constructing on or interfering with Plot No. P4909, now L.R Nairobi Block 105/4472, an order compelling the 2nd defendant to identify and allocate her a bonus parcel, and enforcement by the OCS Ruai Police Station. She deponed that she purchased the suit property from the 2nd defendant, holds an ownership certificate, and found the 1st defendant had encroached, fenced it off and was constructing permanent structures. Neither defendant opposed the application despite service; the 1st defendant neither filed a replying affidavit nor submissions. The court held that an injunction in those terms would amount to an eviction of the 1st defendant, who is in possession, before the evidence of all parties was heard. Invoking paragraph 28(k) of the 2014 Practice Directions, the court instead ordered maintenance of the status quo: the 1st defendant remains in possession but is barred from further development, construction, transfer or other disposition of the suit property pending hearing. The bonus-parcel prayer was refused as a conclusive and final order issuable only after trial. Costs were ordered to be in the cause.

Key legal issues

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01

Whether to grant the temporary injunction sought

Holding

A conventional injunction as framed was not granted because it would effectively evict the 1st defendant before trial; instead the court ordered maintenance of the status quo

Reasoning

The plaintiff's own application showed the 1st defendant was in possession. Granting an injunction would amount to issuing an eviction order before the court heard evidence from all parties, which the court considered inappropriate at the interlocutory stage. Relying on paragraph 28(k) of the 2014 Practice Directions, the court instead maintained the status quo: the 1st defendant keeps possession but is barred from further construction, transfer or disposition of the suit property.

02

Whether the bonus parcel claim can be determined at the interim stage

Holding

Refused at the interim stage as a conclusive and final order that can only issue after the hearing

Reasoning

The court held that compelling the 2nd defendant to identify and allocate a bonus parcel would be a conclusive and final determination of part of the plaintiff's claim, which cannot be made on an interlocutory application before trial and the evidence of all parties.

p. 3

Legal principles established

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  • The power to grant a temporary injunction is discretionary and must be exercised judiciously on the basis of law and evidence
  • Under paragraph 28(k) of the Practice Directions on Proceedings in the Environment and Land Courts, 2014, the court may order maintenance of the status quo until a matter is fully heard and determined
  • A conclusive and final order, such as compelling allocation of a bonus parcel of land, cannot issue at an interim stage

Court orders

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  1. 1.An order of maintenance of the status quo: the 1st defendant remains in possession of the suit property, L.R Nairobi Block 105/4472, but is barred from making any further developments or constructions on the land or transferring or in any other manner disposing of the suit property pending the hearing and determination of the suit
  2. 2.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure Actsections 1A, 1B, 3A and 63(c)
  • Constitution of Kenya, 2010Article 159
  • Practice Directions on Proceedings in the Environment and Land Courts, and on Proceedings Relating to the Environment and the Use and Occupation of, and title to Land and Proceedings in other CourtsParagraph 28(k)

Cases cited (1)

  • Mrao v First American Bank of Kenya Limited & 2 others
    [2003] eKLR
Jurisdiction invoked
Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules; sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act; Article 159 of the Constitution; Paragraph 28(k) of the Practice Directions on Proceedings in the Environment and Land Courts, 2014

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, "Gachanja v Ogalo & another (Environment & Land Case E273 of 2021) [2022] KEELC 2368 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2368/eng@2022-06-30

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