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Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Case E067 of 2022· [2023] KEELC 17059 (KLR)

Muema v Ntaliai & 2 others

Environment and Land Court
27 April 2023
1,537 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kajiado court refused to stop land dealings because the buyer couldn't prove her claim, showing Kenyan courts demand solid evidence before granting injunctions.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (L. Komingoi, J) determined a Notice of Motion dated 22 August 2022 in which the plaintiff, Evelyne Mueni Muema, sought a temporary injunction restraining the defendants from entering, interfering with, constructing on, fencing or leasing out property formerly known as Plot No 853/Business Emali T. Centre, now Plot Nos A149 and A150, pending the hearing of the suit. The application was brought under Order 40 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, supported by the plaintiff's affidavit, and opposed by the 1st Defendant through a replying affidavit and by the 3rd Defendant (County Government of Kajiado) through grounds of opposition and submissions; the 2nd Defendant filed no response. The plaintiff relied on a sale agreement of 28 November 2011 with the 1st Defendant and an allotment letter, contending she purchased the original plot which was later subdivided and part allocated to the 2nd Defendant. The court, applying Giella v Cassman Brown, Mrao Ltd and Nguruman Limited, framed two issues: whether the threshold for a temporary injunction was met, and costs. It found the size of the plot sold could not be ascertained from the documents, that the plaintiff had not demonstrated any interest in Plot A150, that she had not established a prima facie case with a probability of success, had not shown irreparable injury not compensable by costs, and that the balance of convenience did not favour her as she was not in possession and had not developed the plot. The application was dismissed with costs abiding the outcome of the main suit.

Key legal issues

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01

Whether the applicant established a prima facie case with a probability of success

Holding

She did not; the size of the plot sold could not be ascertained and she demonstrated no interest in Plot No A150

Reasoning

The court examined the Sale Agreement of 28/11/2011, the allotment letter of 29/10/2002 and the transfer; none stated the size of the plot. The 1st Defendant stated she sold approximately 50ft x 100ft. The applicant could not show the plot measured 75ft x 100ft or 0.065 Ha, nor that she had any interest in Plot A150 allocated to the 2nd Defendant.

02

Whether the applicant demonstrated irreparable injury not compensable by damages

Holding

She did not; she is not in possession of the suit property

Reasoning

Applying Nguruman Limited v Jan Bonde Nielsen, the court held the burden is on the applicant to demonstrate the nature and extent of the injury, which must be actual, substantial and demonstrable. The applicant was not in possession of the suit property and adduced no evidence of injury she would suffer if injunctive relief were denied.

p. 4
03

Whether the balance of convenience tilts in favour of the applicant

Holding

It does not; she has not developed the plot

Reasoning

The court found the applicant was not in possession or use of the suit property and had not developed it, so the balance of convenience did not favour granting the injunction.

p. 4

Legal principles established

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  • A prima facie case in civil matters is one in which, on the material presented, the court concludes that a right has apparently been infringed so as to call for an explanation or rebuttal by the opposite party
  • Irreparable injury is a threshold requirement the applicant must demonstrate; speculative injury will not suffice and the injury must be one that damages cannot adequately compensate

Court orders

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  1. 1.The Notice of Motion dated 22/8/2022 seeking a temporary injunction is dismissed.
  2. 2.The costs of the application do abide the outcome of the main suit.
Jurisdiction invoked
Order 40 Rule 1 of the Civil Procedure Rules 2010; Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21)

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, "Muema v Ntaliai & 2 others", Case Analysis (2023). Environment & Land Case E067 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17059/eng@2023-04-27

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