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ELCPartially AllowedEnvironment & Land Case 1553 of 2013 & Civil Suit 375 of 2018 (Consolidated)· [2023] KEELC 16079 (KLR)

Muturi & 2 others v Morjaria & 2 others

Environment and Land Court
9 February 2023
1,881 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court halted construction on disputed land, ruling that building on property whose title is under challenge risks greater injustice than pausing work.

What this practically means

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Executive summary

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This is a ruling by A. A. Omollo, J of the Environment and Land Court at Nairobi on a notice of motion dated September 5, 2022 by the 3rd Defendant/Applicant, Sema Health Products Ltd, in consolidated Environment & Land Case 1553 of 2013 and Civil Suit 375 of 2018. The Applicant sought a temporary injunction restraining the Respondents from proceeding with construction activities on LR No 24392, pending the hearing and determination of the main suit, together with ouster and police escort prayers. The Applicant deposed that ongoing construction, including a perimeter wall and gate, was proceeding on the suit property pursuant to instructions of 'the owner of the property', and apprehended fraudulent attempts to take over or dispose of the property, whose title held by the 3rd Plaintiff/Respondent was under challenge, with the National Land Commission having reportedly directed its revocation. The 3rd Plaintiff/Respondent, Catherine Njeri, opposed through a replying affidavit asserting she was the registered owner in lawful and exclusive possession. The court framed the sole issue as whether the Applicant met the criteria for a temporary injunction, applying Giella v Cassman Brown and Nguruman Limited v Jan Bonde Nielsen. Noting the un-denied ongoing construction, the pending counter-claim challenging the Plaintiffs' title, and the doctrine of lis pendens, the court found the lower risk of injustice lay in granting the injunction. The application was allowed in terms of prayer 6: a temporary injunction restraining the Plaintiffs/Respondents from proceeding with construction on LR No 24392 pending determination of the suit, with costs of the application to the 3rd Defendant/Applicant in the cause. The ouster and police escort prayers were not granted.

Key legal issues

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01

Whether the 3rd Defendant established a prima facie case with a probability of success

Holding

Yes - the Applicant contests the title held by the 3rd Plaintiff, which title the National Land Commission directed to be revoked, and there is a counter-claim on record challenging the Plaintiffs' title

Reasoning

The court noted the Applicant's counter-claim against the Plaintiffs/Respondents and the submission that the National Land Commission had found the title issued to the 1st and 2nd Plaintiffs was to be revoked, meaning no good title could pass to the 3rd Plaintiff, on whose impugned title the construction proceeded.

p. 3
02

Whether the Applicant would suffer irreparable injury not compensable in damages

Holding

The court accepted the Applicant's apprehension that the suit property might be disposed of or dealt with as set out in the application if orders were not granted

Reasoning

Relying on the definition of irreparable injury in Pius Kipchirchir Kogo v Frank Kimeli Tenai, the court found that if the orders sought were not granted, the suit property might be dealt with in the manner apprehended by the Applicant, since both parties claim ownership of the property.

p. 4
03

Whether the balance of convenience tilts in favour of the Applicant

Holding

Yes - the lower risk of injustice lies in granting the temporary injunction and maintaining the status quo pending determination of the suit

Reasoning

The 3rd Plaintiff did not deny ongoing construction works on the suit property, and there is a counter-claim challenging the Plaintiffs' title. Applying Amir Suleiman v Amboseli Resort Limited, the court opted for the lower rather than the higher risk of injustice, holding that the titleholder's right to deal with the property is subject to lis pendens.

p. 4

Legal principles established

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  • Where both parties claim ownership and construction is ongoing on land subject to a pending suit, the lower risk of injustice lies in granting a temporary injunction preserving the status quo
  • A titleholder's right to deal with registered land is restricted while the suit is pending under the doctrine of lis pendens

Court orders

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  1. 1.Temporary injunction restraining the Plaintiffs/Respondents, their servants, agents, assigns or anybody working under their instructions from proceeding with construction activities at the suit property known as Land Reference No. 24392 pending the hearing and determination of the main suit
  2. 2.Costs of the application to the 3rd Defendant/Applicant in the cause

Authorities

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Cases cited (8)

  • Jared Sigini Keegwa vs Walter Onchwari and another
    [2014]

    Definition of a prima facie case as including a genuine and arguable case

  • Joseph Sire Oromo vs Housing Finance Company of Kenya
    [2008] eKLR

    Damages are not a substitute for loss occasioned by a clear breach of the law

  • Niaz Mohamm Jammohammed vs Commissioner for lands & 4 Others
    (1996) eKLR

    A crystallized right violated cannot be equated to compensation by damages

  • Giella v Cassman Brown & Co Ltd
    [1973] EA 358

    Settled principles for the grant of interlocutory injunctions

  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR; CA No 77 of 2012

    Three sequential, distinct hurdles for interlocutory injunctions

  • Pius Kipchirchir Kogo Vs Frank Kimeli Tenai
    (2018) eKLR

    Meaning of irreparable injury - injury not adequately compensable in damages

  • Paul Gitonga Wanjau Vs Gathuthis Tea Factor Company Ltd & 2 others
    (2016) eKLR

    Balance of convenience - court makes determination as to which party will suffer the greater harm

  • Amir Suleiman Vs Amboseli Resort Limited
    [2004] eKLR

    Court should opt for the lower rather than the higher risk of injustice

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (LR No 24392)

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, "Muturi & 2 others v Morjaria & 2 others", Case Analysis (2023). Environment & Land Case 1553 of 2013 & Civil Suit 375 of 2018 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16079/eng@2023-02-09

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