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Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment as provided (Notice of Motion dated 3rd August, 2022 within a suit concerning Mavoko Town Block 3/2104)· [2023] KEELC 743 (KLR)

Kinyanjui & 2 others v Kamau & 2 others; Javisapa Enterprises Limited (Interested Party) (Environment & Land Case E060 of 2022) [2023] KEELC 743 (KLR)

Environment and Land Court of Kenya
14 February 2023
2,929 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The court refused to stop a completed land sale, warning that injunctions cannot help where the property has already been lawfully transferred and the buyer waited too long.

What this practically means

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Executive summary

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The Plaintiffs, members of Neema Welfare Association, moved the Environment and Land Court at Machakos by Notice of Motion dated 3rd August 2022 seeking an interlocutory injunction restraining the 1st and 2nd Defendants from trespassing on or interfering with Mavoko Town Block 3/2104 pending the hearing of the suit. They claimed to be bona fide purchasers whose contributions were received by the 1st Defendant as Treasurer of the Association, and alleged that he fraudulently registered the 2nd Defendant company as proprietor of the land, was criminally charged for obtaining registration of land by false pretences, and charged the land to Equity Bank. The 1st Defendant denied the Association's interest, asserted registration of the 2nd Defendant since 2004 and his acquittal in the criminal case. The Interested Party, the decree-holder in Machakos High Court Civil Suit No. 5 of 2018 (Javisapa Enterprises Limited v Neema Trust Company Limited), showed that Justice Odunga's orders of 26th January 2022 authorised public auction of the land, and that execution had already been completed. Applying the Giella v Cassman Brown principles and the definition of a prima facie case in Mrao Ltd v First American Bank, the court found the application overtaken by events, noting no appeal had been filed against the decree, the similarity of the 1st Defendant's signature to the Treasurer's, and the Plaintiffs' unexplained inaction since 2004. The application was disallowed with costs in the cause.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case warranting an interlocutory injunction

Holding

No prima facie case was established because the suit land had already been sold in execution of a valid decree and the Plaintiffs had not acted since 2004 to claim the land

Reasoning

The court examined the receipts, plot certificates and the similarity of the 1st Defendant's signature to the Association Treasurer's, noting he never denied signing the receipts and had admitted in criminal proceedings that the land belonged to the Plaintiffs. However, Justice Odunga's order of 26th January 2022 in Civil Suit No. 5 of 2018 authorised public auction; execution was completed and no appeal was filed against that decree. The suit filed on 3rd August 2022 therefore came after the disposal, and injunctions cannot issue in vain.

p. 5
02

Whether the court should consider the second and third Giella limbs

Holding

The court declined to consider them since the Plaintiffs failed on the prima facie case limb

Reasoning

Following the Court of Appeal decision in Nguruman Ltd v Jan Bonde Nielsen, once a party fails to establish a prima facie case with a probability of success, there is no need to inquire into irreparable harm or the balance of convenience. The court accordingly associated itself with that authority and declined to make any determination on the remaining limbs.

p. 5

Legal principles established

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  • Injunctive reliefs are equitable remedies and courts will not issue orders in vain; where a suit land has been disposed of pursuant to a valid decree, an injunction application is overtaken by events
  • Where a party fails to establish a prima facie case, the court need not determine the other two limbs of the Giella test

Court orders

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  1. 1.The Notice of Motion dated 3rd August, 2022 is disallowed
  2. 2.Costs will be in the cause
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over disputes relating to land parcel Mavoko Town Block 3/2104; specific provision not cited in the judgment

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, "Kinyanjui & 2 others v Kamau & 2 others; Javisapa Enterprises Limited (Interested Party) (Environment & Land Case E060 of 2022) [2023] KEELC 743 (KLR)", Case Analysis (2023). Not stated in the judgment as provided (Notice of Motion dated 3rd August, 2022 within a suit concerning Mavoko Town Block 3/2104). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/743/eng@2023-02-14

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