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ELCDismissedNot stated in the judgment text· [2023] KEELC 878 (KLR)

Plein v Gathigia (Sued on her behalf and on behalf of Kingdom Seekers Fellowiship Nyahururu) & 3 others (Environment and Land Appeal E010 of 2022) [2023] KEELC 878 (KLR)

Environment and Land Court
16 February 2023
YAY. M. Angima
1,422 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nyahururu (Y. M. Angima, J) dated 16 February 2023 on a notice of motion dated 23 June 2022 filed by the appellant, Purity Muthoni Plein, in an appeal against a trial court ruling of 7 June 2022 that had dismissed her application for an interim injunction. Invoking sections 3 & 3B, 6 and 63(e) of the Civil Procedure Act and Order 42 rule 6(6) of the Civil Procedure Rules, she sought an injunction restraining the 4th respondent from continuing construction of permanent structures on L.R. No. Nyahururu Municipality Block 8/1017, alleging the construction contravened the Physical Planning Act, 1996 because the only approved plans related to parcel 374. The 4th respondent, through a replying affidavit of John Kanyango Wathira, asserted it was the registered proprietor of parcel 374, had obtained change of user, approved building plans and development permission from the County Government of Laikipia, and had used the parcel for religious activities since 2008; it further alleged estoppel. The sole issue was whether the appellant had made out a case for a temporary injunction. Applying Giella v Cassman Brown and Mrao v First American Bank, the court held that no prima facie case was established: there was no surveyor's or County Government report showing construction on parcel 1017, no evidence of fraud in obtaining approvals, and the appellant's submissions were not on file. The suit would not be rendered nugatory since structures could be dismantled. The motion was dismissed with costs in the appeal.

Key legal issues

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01

Whether the appellant established a prima facie case for an interim injunction pending appeal

Holding

No prima facie case was established; there was no credible evidence that construction was on parcel 1017 rather than parcel 374, nor that approvals were obtained unlawfully

Reasoning

The court applied the Giella principles. The appellant alleged construction on parcel 1017 using plans approved for parcel 374, but produced no surveyor's report or County Government material supporting that allegation. The 4th respondent's evidence of change of user, approved building plans and development permission, and its use of parcel 374 since 2008, stood uncontroverted.

p. 3
02

Whether the suit would be rendered nugatory absent an injunction

Holding

The court was not satisfied the suit would be rendered nugatory, since structures could be brought down if the appeal ultimately succeeded

Reasoning

The appellant did not demonstrate that demolition of permanent structures would be impossible should she succeed. Without satisfaction of the first Giella principle, and with no nugatory- prejudice shown, the court declined to grant the interim relief pending appeal.

p. 3

Legal principles established

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  • An applicant for an interlocutory injunction must first demonstrate a prima facie case with a probability of success; failing the first Giella principle, the court need not consider the remaining principles

Court orders

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  1. 1.The appellant's notice of motion dated 23.06.2022 is dismissed
  2. 2.Costs of the application shall be costs in the appeal

Authorities

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Legislation

  • Civil Procedure Act (cap. 21)sections 3 & 3B, 6 and 63(e)
  • Civil Procedure Rules 2010Order 42 rule 6(6); Order 51 rule (1)
  • Physical Planning Act, 1996Not specified
  • Physical and Land Use Planning Act, 2019Not specified

Cases cited (2)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Limited –vs- First American Bank of Kenya Ltd & 2 others
    [2003] KLR 125
On appeal from
Trial court (Nyahururu)
Not stated
Jurisdiction invoked
Sections 3 & 3B, 6 and 63(e) of the Civil Procedure Act (cap. 21); Order 42 rule 6(6) and Order 51 rule (1) of the Civil Procedure Rules 2010

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, "Plein v Gathigia (Sued on her behalf and on behalf of Kingdom Seekers Fellowiship Nyahururu) & 3 others (Environment and Land Appeal E010 of 2022) [2023] KEELC 878 (KLR)", Case Analysis (2023). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/878/eng@2023-02-16

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