Nambilo & 4 others v Nandoka & 3 others (Environment & Land Case 15 of 2022) [2023] KEELC 576 (KLR)
The bottom line
#A Kenyan land court refused to stop a plot survey because the buyers could not prove their rights clearly enough to win an urgent injunction.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants established a prima facie case for an interlocutory injunction
No prima facie case was established; the purchase agreements showed no correlation to initial ownership of the Sirende Trading Centre and the survey would not negatively affect the Applicants.
The Court examined the purchase agreements annexed as SNN1 and SNN2 and found no correlation with initial ownership of the Trading Centre. The gazetted PDP yielding 37 plots was admitted, and the excess of plot owners (over 75) resulted from individual transactions not attributable to the Respondents. The Applicants also produced no evidence of exclusion from meetings, and the withdrawn 2009 High Court suit left the Committee free to act.
Whether the Applicants would suffer irreparable loss not compensable by damages
No; the history and evidence of their purchases is preserved and any damage can be compensated by damages.
The Applicants' alleged purchases from initial owners or from Wehoya Farm Co. Ltd are matters of record that survive the survey. Once allocation is made to recognised rightful owners, purchasers can trace their transaction chains and obtain transfers. Consequently there is no imminent risk to the Applicants and any loss would be compensable in damages.
Where the balance of convenience lies
The balance tilts in favour of the Respondents completing the survey and titling exercise.
Having failed on the first two sequential limbs, the Court nonetheless noted that the Respondents, as the duly elected Committee, were pursuing the mandate of completing the planning, survey and titling of the Trading Centre, and that stopping the exercise would not serve the Applicants who had no demonstrated interest.
Weight to be attached to the 4th Respondent's evidence supporting the Applicants
The 4th Respondent's depositions were compromised and unreliable, and were to be taken with a pinch of salt.
The 4th Respondent attended all Committee meetings since 2009 without complaint, admitted acquiring a plot through an unstated 'official' channel, initially drew his response through the same law firm as the Plaintiffs, and supported the application despite being a Respondent. The Court found his position inconceivable, unconvincing and unreliable.
Legal principles established
#- The conditions for an interlocutory injunction under Giella v Cassman Brown must be considered sequentially; failure at the first stage disposes of the application.
- The grant or refusal of a temporary injunction is an exercise of judicial discretion which must be exercised judiciously.
- A prima facie case requires more than an arguable case; the evidence must show an apparently infringed right calling for explanation from the opposite party.
Court orders
#- 1.The Notice of Motion dated May 26, 2022 is dismissed
- 2.Costs of the application awarded to the 1st, 2nd and 3rd Respondents only
- 3.The temporary orders of injunction issued earlier in the matter are discharged
- Jurisdiction invoked
- Sections 3, 3A and 63(e) of unspecified legislation, Order 40 Rules 1 and 4 of the Civil Procedure Rules, 2010, and Section 13(7)(a) of the Environment and Land Court Act (Act No 19 of 2011)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nambilo & 4 others v Nandoka & 3 others (Environment & Land Case 15 of 2022) [2023] KEELC 576 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/576/eng@2023-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.