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ELCPartially AllowedEnvironment & Land Case E032 of 2022· [2022] KEELC 15427 (KLR)

Ngure v Ndungu & another

Environment and Land Court
22 November 2022
FNFM Njoroge
2,715 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Nakuru court blocked any dealings with disputed Naivasha land until trial, but threw out an attempt to overturn earlier interim orders that had already expired.

What this practically means

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Executive summary

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This ruling by FM Njoroge, J of the Environment and Land Court at Nakuru dealt with two competing interlocutory applications in a land dispute over Naivasha/Mwichiringiri Block 3/2072. The plaintiff, Peter Ndungu Ngure, sought a temporary injunction restraining the defendants from dealing with the suit land, claiming it had been bequeathed to him by his mother Dorcas Muthoni Ngure, who entrusted the title to the 1st defendant (Palsunter Capital Limited) for conveyance to him; he alleged the 1st defendant fraudulently transferred the land to herself and sold it to the 2nd defendant, Fidelis Muthoni Ndungu. The 2nd defendant, describing itself as a microfinance company, countered that it took the title from the 1st defendant upon default of a Kshs 500,000 loan secured by the land, and applied to discharge the ex parte injunction issued June 10, 2022. The court held that the June 10 orders expired upon the inter-partes hearing, so the 2nd defendant's application was overtaken by events and dismissed. Applying Giella, Nguruman and Mrao, the court found the plaintiff had established a prima facie case - noting the 1st defendant filed no response and the live donor's evidence would be useful - though it found irreparable loss not proved, and granted the injunction in terms of prayer (c) while directing an expedited hearing. Timelines for filing trial bundles were set, and each party was ordered to bear the costs of its own application.

Key legal issues

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01

Whether the plaintiff established a prima facie case for a temporary injunction

Holding

The court found a prima facie case established, resting on the live testimony of the donor Dorcas and the unexplained transfer to the 1st defendant who filed no response

Reasoning

The plaintiff claimed the land was bequeathed to him by his mother, who gave the title to the 1st defendant to convey to him. The 1st defendant filed no appearance or defence, leaving unexplained how she obtained the transfer. The court found the donor's direct evidence useful and found a prima facie case, though not irreparable loss.

p. 5
02

Whether the 2nd defendant's application to set aside the June 10, 2022 orders was competent

Holding

Dismissed as overtaken by events since the interim orders expired at the inter-partes hearing

Reasoning

The June 10, 2022 orders were expressly limited to preserving the suit property pending the inter-partes hearing. Once that hearing occurred, the orders lapsed and there was nothing left to discharge or set aside, rendering the application moot.

p. 3

Legal principles established

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  • Interim orders limited to preserving property pending an inter-partes hearing lapse once that hearing takes place; an application to set aside such orders is then moot
  • The Giella v Cassman Brown and Nguruman principles govern temporary injunctions, applied as sequential hurdles

Court orders

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  1. 1.The Plaintiff's application dated June 6, 2022 is granted in terms of prayer no (c) - temporary injunction restraining the defendants from dealing with Naivasha/Mwichiringiri Block 3/2072 pending hearing and determination of the suit
  2. 2.The 2nd defendant's application dated May 30, 2022 is dismissed
  3. 3.The plaintiff shall file an affidavit of service of summons upon all defendants within 7 days
  4. 4.The plaintiff shall file a paginated, indexed trial bundle within 30 days
  5. 5.The defendants shall file a paginated, indexed trial bundle within 60 days
  6. 6.The time frames shall run concurrently
  7. 7.The suit to be mentioned on January 25, 2023 for issuance of a hearing date
  8. 8.Each party shall bear the costs of their respective application

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40 rule (1)(a) and (b)
  • Constitution of Kenyaright to own property (as invoked by 2nd defendant)

Cases cited (4)

  • David Njunu Koinange v Edward Kibe Wanjohi & 5 others
    [2021] eKLR

    Court dismissed an application whose interim prayers had lapsed; analogous fate for a moot application

  • Giella v Cassman Brown
    (1973) EA 358

    Principles for grant of temporary injunction

  • Nguruman Limited versus Jan Bonde Nielsen & 2 others
    CA No 77 of 2012 (2014) eKLR

    Triple sequential requirements for interlocutory injunctions

  • Mrao Ltd v first American Bank of Kenya Ltd & 2 others
    [2003] KLR 125

    Definition of a prima facie case

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (inherent interlocutory jurisdiction over land disputes)

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, "Ngure v Ndungu & another", Case Analysis (2022). Environment & Land Case E032 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15427/eng@2022-11-22

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