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ELCDismissedEnvironment & Land Case E397 of 2022· [2023] KEELC 19336 (KLR)

Wanjiku (Suing as the Legal Rep of the Estate of Mwathi Kaguora) v Hanif Construction Co. Limited & another

Environment and Land Court
27 July 2023
AOAA Omollo
2,473 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to stop construction on a disputed Nairobi property because the estate's ownership claim was unclear and any loss could be paid as damages.

What this practically means

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Executive summary

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The Plaintiff, suing as legal representative of the Estate of Mwathi Kaguora, moved the Environment and Land Court by notice of motion dated November 23, 2022 seeking a permanent injunction restraining the Defendants from trespassing on, constructing on or interfering with LR No 209/3271/69 in Pangani, Nairobi, an order compelling removal of an erected storey building, an order for the Defendants to vacate, police enforcement and costs. He asserted the property was held by Mwathi Kaguora and Jane Waithera Mbugua (both deceased) as tenants in common in 60/40 shares, that succession was ongoing, and that the Defendants had unlawfully erected a building causing loss of income. The Defendants opposed, raising res judicata, locus standi and the doctrine of survivorship, contending Jane Waithera Mbugua became absolutely entitled on Mwathi Kaguora's death and had sold the property to them; an Interested Party claiming letters of administration of Jane Waithera Mbugua's estate made similar submissions. A preliminary objection on these grounds had already been dismissed on April 25, 2023. Applying Giella v Cassman Brown, Nguruman, Shepherd Homes and Nation Media Group, AA Omollo J held the case was not clear because the title entry required interpretation of whether the joint-tenancy interest passed to the estate or the surviving co-tenant; the claimed share was ascertainable and compensable in damages, defeating irreparable injury; and the balance of convenience favoured allowing the significantly progressed (12th floor) construction to continue. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether a clear case/special circumstances existed for a mandatory injunction

Holding

No - the title entry requires interpretation of whether the joint-tenancy interest passed to the estate or the surviving co-tenant, so the case is not clear

Reasoning

The title entry shows a transfer to Jane Waithera Mbugua and Mwathi Kaguora partly as tenants in common and partly as joint tenants. Whether Mwathi Kaguora's interest passed by survivorship to the surviving joint tenant or to his estate requires interpretation, so the case is not unusually strong and clear as required by Shepherd Homes and Nation Media Group.

p. 5
02

Irreparable injury

Holding

Not established - the Applicant's claimed share is ascertainable and any loss can be compensated in damages

Reasoning

The Applicant pleaded only a share of the property, making its interest ascertainable. Where loss is quantifiable and compensable, the irreparable injury limb fails per Pius Kipchirchir Kogo v Frank Kimeli Tenai.

p. 5
03

Balance of convenience

Holding

Tilts against the Applicant - construction is significantly progressed (12th floor) and stopping it carries the higher risk of injustice

Reasoning

Weighing the cost of construction against stopping a significantly progressed building, the cost of stopping is higher. Guided by Amir Suleiman v Amboseli Resort, the court opts for the lower risk of injustice.

p. 5

Legal principles established

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  • A mandatory injunction at interlocutory stage requires an unusually strong and clear case or special circumstances
  • The three Giella requirements are sequential hurdles the applicant must surmount
  • Courts should opt for the lower rather than the higher risk of injustice on balance of convenience

Court orders

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  1. 1.The Applicant's notice of motion dated November 23, 2022 is dismissed
  2. 2.Costs of the application to the Respondents

Authorities

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Cases cited (6)

  • Shepherd Homes Limited v Sandham
    (1971) 1 CH 34

    Mandatory injunctions at interlocutory stage require an unusually strong and clear case

  • Nation Media Group & 2 others v John Harun Mwau
    (2014) eKLR

    Special circumstances and a higher standard are required for interlocutory mandatory injunctions

  • Giella v Cassman Brown
    (1973) EA 358

    Settled principles for temporary injunctions

  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 (2014) eKLR

    Triple sequential requirements: prima facie case, irreparable injury, balance of convenience

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

    Meaning of irreparable injury - injury not adequately compensable in damages

  • Amir Suleiman v Amboseli Resort Limited
    [2004] eKLR

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

Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (Environment and Land Court Act); interlocutory application in a pending suit

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, "Wanjiku (Suing as the Legal Rep of the Estate of Mwathi Kaguora) v Hanif Construction Co. Limited & another", Case Analysis (2023). Environment & Land Case E397 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19336/eng@2023-07-27

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