Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedEnvironment and Land Appeal E002 of 2023· [2023] KEELC 17782 (KLR)

Martin Gitonga Nkonge v Nancy Wanjiku Kariuki

Environment and Land Court
31 May 2023
2,951 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

#

Kenya's Environment and Land Court stopped an eviction, ruling that a resident with an equitable claim and developments on land can get protection while an appeal is decided.

What this practically means

#

Executive summary

#
This is a ruling by C. K. Yano, J of the Environment and Land Court at Chuka on a notice of motion dated February 15, 2023 by the appellant, Martin Gitonga Nkonge, in an appeal against a ruling of the Chief Magistrate's Court at Chuka (CM ELC E064 of 2022) delivered on February 10, 2023, dismissing his application for injunctive relief. The applicant sought an injunction restraining the respondent from evicting him from LR No Muthambi/Upper Karimba/267, 1892 and 1895 pending the hearing of the lower court suit and the appeal. The respondent, who identified herself as Nancy Wanjiku Njeru, opposed the application, contending that the suit properties form part of the estate of her late husband Plasido Njeru Nkonge, that a succession cause (Nairobi High Court Succession Cause No E401 of 2022) is pending in which the applicant has filed a protest, and that the applicant lacks locus standi and is intermeddling with the estate contrary to section 45 of the Law of Succession Act. Both parties filed written submissions citing extensive authorities on injunctions. The court framed a single issue: whether the applicant had demonstrated a prima facie case for an interlocutory injunction pending the suit and appeal. Applying Giella v Cassman Brown as restated in Nguruman and the definition of a prima facie case in Mrao Ltd, the court found the applicant claims an equitable interest, lives on and has developed the land, and would suffer irreparable harm with the appeal rendered nugatory if eviction proceeded. Balancing the parties' rights, the court allowed the application, with costs to abide the outcome of the appeal and follow the event.

Key legal issues

#
01

Whether the applicant established a prima facie case warranting an interlocutory injunction pending appeal

Holding

The court found the application had merit and allowed it, holding that the applicant's claimed equitable interest, residence and developments on the suit land, and the threat of eviction and demolition satisfied the threshold for preservation orders.

Reasoning

The court applied the Giella v Cassman Brown principles as restated in Nguruman. It found the applicant claims an equitable interest in part of the suit properties, lives on the land with his family, and has developed it. If eviction and demolition proceeded, the applicant would suffer irreparable harm and the appeal would be rendered nugatory. The court balanced the parties' rights, citing Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji, and held preservation orders appropriate pending the suit and appeal.

p. 5

Legal principles established

#
  • The triple Giella/Nguruman requirements for an interlocutory injunction are applied as separate, sequential hurdles.
  • Interlocutory orders preserving the subject matter of an appeal protect the appellant's rights should the appeal succeed.

Court orders

#
  1. 1.The notice of motion dated February 15, 2023 is allowed; injunction orders restraining the respondent from evicting the applicant from LR No Muthambi/Upper Karimba/267, 1892 and 1895 pending hearing and determination of Chuka CM ELC E064 of 2022 and of the appeal
  2. 2.Costs of the application to abide the outcome of the appeal and follow the event

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1A(2), 3A
  • Civil Procedure RulesOrder 40 rule 1; Order 42 rule 6(2); Order 51 rules 1, 2, 3 & 4
  • Constitution of KenyaArticles 22, 40, 50, 159
  • Law of Succession ActSection 45

Cases cited (21)

  • Salim Ali Said v Salwa Ali Said Abdulrehman & 3 others
    [2020] eKLR

    Matters relating to estate property should be dealt with in the succession cause, not a separate cause of action

  • Giella v Cassman Brown Co Ltd
    (1973) EA 358

    Classical principles for grant of temporary injunction

  • American Cyanamid v Ethicon
    (1975) 1 All ER 504

    Injunction principles

  • Kenleb Cons Ltd v New Gatitu Service Station Ltd & another

    Injunction principles

  • Joseph Siro Mosioma v Housing Finance Company of Kenya Limited & 3 others
    [2008] eKLR

    Injunction principles

  • Chebii Kipkoech v Barnabas Tuitoek Bargoria & Another
    [2019] eKLR

    Injunction principles

  • Paul Gitonga Wanjau vs. Gathuthis Tea Factory Company Ltd & 2 others
    [2016] eKLR

    Injunction principles

  • East African Industries v Trufoods
    [1972] EA 420

    Injunction principles

  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR

    Triple sequential requirements for interlocutory injunction

  • Airland Tours & Travel Limited v National Industrial Credit Bank
    Nairobi (Milimani) HCCC No 1234 of 2002

    Injunction principles

  • Lucy Nungari Ngigi & 4 Others v National Bank of Kenya & Anor

    Injunction principles

  • Dr. Simon Waiharo Chege v Paramount Bank of Kenya Ltd
    Nairobi (Milimani) HCCC No 360 of 2001

    Injunction principles

  • Esso Kenya Limited v Mark Makwata Okiya
    Civil Appeal No 69 of 1991

    Injunction principles

  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    (2003) KLR 125

    Definition of prima facie case

  • Pius Kipchirchiri Kogo v Frank Kimeli Tenai
    [2018] eKLR

    Injunction principles

  • Daniel Njuguna Mbugua vs. Peter Kiarie Njuguna & 2 others
    [2021] eKLR

    Locus standi and intermeddling with a deceased's estate

  • Sisilia Nyakoe & another v Attorney General & 4 others
    [2021] eKLR

    Locus standi

  • Lucy Wambui Njoroge (suing as the legal representative of the estate of Benard Wamiri Ngugi – Deceased) v Lands Registrar, Nairobi & another
    [2021] eKLR

    Locus standi of non-legal representatives in estate property claims

  • Patricia Njeri & 3 others v National Museum of Kenya
    [2004] eKLR

    Threshold for injunction pending appeal

  • Esther Muthoni Mwangi v Samuel Maina Njaria
    [2021] eKLR

    Injunction pending appeal

  • Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & another
    [2015] eKLR

    Balancing parties' rights and preventing appeals being rendered nugatory

On appeal from
Chief Magistrate's Court at Chuka
CM ELC E064 of 2022
Jurisdiction invoked
Appellate jurisdiction over the Chief Magistrate's Court under the Environment and Land Court Act; application brought under sections 1A and 3A of the Civil Procedure Act, Order 40 rule 1 and Order 51 rules 1, 2, 3 & 4 of the Civil Procedure Rules and articles 22, 40, 50 and 159 of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Martin Gitonga Nkonge v Nancy Wanjiku Kariuki", Case Analysis (2023). Environment and Land Appeal E002 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17782/eng@2023-05-31

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