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ELCOtherEnvironment & Land Case E225 of 2023· [2024] KEELC 869 (KLR)

Giir v Aboug (Environment & Land Case E225 of 2023) [2024] KEELC 869 (KLR)

Environment and Land Court
15 February 2024
3,037 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi land owner who lost possession under a court order failed to win an injunction, and her opponent's attempt to have the whole suit dismissed also failed.

What this practically means

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Executive summary

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The court determined two competing applications: the Plaintiff's notice of motion dated 13th June 2023 seeking a temporary injunction restraining the Defendant from trespassing on, occupying or developing LR No. 214/382 (Original Number 214/64/5), Muthaiga, and an order that he vacate; and the Defendant's application dated 4th July 2023 seeking dismissal of the suit as statute barred and costs on an indemnity basis. The dispute arises from an alleged 2011 loan by the Defendant to the Plaintiff's husband, Garang Deng Aguer: the Plaintiff contends the loan was USD 300,000 secured by surrender of her title as collateral and fully repaid in 2013, whereafter the Defendant fabricated a loan agreement and a consent judgment in Milimani CMCC No. 4018 of 2013 and procured her eviction; the Defendant contends a USD 2,150,000 loan was secured by a signed loan agreement and Indenture of Conveyance registered in December 2011, extinguishing her rights. Framing three issues, the court applied Giella v Cassman Brown and Nguruman. It found no prima facie case, since the Defendant holds an Indenture, a 2016 search and possession under an eviction order never set aside; no irreparable injury, the Defendant having been in possession since 2013 with a development permit; and the balance of convenience favouring the Defendant. The limitation defence was reserved for trial since the cause of action's accrual requires evidence. Both applications were dismissed with no order as to costs; the main suit proceeds to trial.

Key legal issues

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01

Temporary injunction - prima facie case

Holding

Plaintiff failed to establish a prima facie case because the Defendant holds an Indenture and search and took possession pursuant to an eviction order never set aside

Reasoning

The court found the conflicting searches (2016 in Defendant's name; 2023 in Plaintiff's name) could only be resolved at trial. Nonetheless, the Defendant's possession since 2013 under an unvacated court order meant the Plaintiff had not shown an apparently infringed right calling for rebuttal. The eviction orders and conveyance were premised on the validity of the loan agreement, which remains a trial matter.

p. 5
02

Temporary injunction - irreparable injury and balance of convenience

Holding

No irreparable injury shown; damages adequate and balance of convenience favours the Defendant in possession

Reasoning

The Defendant has been in possession since 2013 and holds a development permit from Nairobi County. Evicting him pending trial would cause greater inconvenience. The Plaintiff, no longer in possession, failed to demonstrate injury that could not be compensated by damages, per Halsbury's definition of irreparable injury.

p. 6
03

Whether the suit is statute barred

Holding

Not determined interlocutorily; reserved for trial

Reasoning

The Defendant invoked Section 136 of the Government Lands Act (as saved), the Limitation of Actions Act and Section 3 of the Law of Contract Act. The court held that determining when the cause of action arose requires evidence at trial, and it is not yet clear who the registered owner is given the conflicting searches. The Defendant's dismissal application therefore failed.

p. 6

Legal principles established

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  • An applicant for an interlocutory injunction must establish a prima facie case with probability of success, irreparable injury not compensable by damages, and failing which the balance of convenience
  • Possession under a subsisting eviction order that has not been set aside weighs against a plaintiff out of possession in the balance of convenience
  • A statutory limitation defence requiring determination of when the cause of action arose is a matter for trial, not interlocutory dismissal

Court orders

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  1. 1.Dismissal of the Defendant's application dated 4th July 2023
  2. 2.Dismissal of the Plaintifi's application dated 13th June 2023
  3. 3.No order as to costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40, Rule 1
  • Land Registration ActSections 107
  • Land ActSection 162
  • Government Lands Act (repealed)Sections 99, 136(1)
  • Limitation of Actions ActNot specified
  • Law of Contract ActSection 3

Cases cited (3)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Nguruman Limited vs Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Mrao Ltd vs First American Bank of Kenya and 2 Others
    (2003) KLR 125
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (statutory basis not expressly cited in the judgment)

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, "Giir v Aboug (Environment & Land Case E225 of 2023) [2024] KEELC 869 (KLR)", Case Analysis (2024). Environment & Land Case E225 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/869/eng@2024-02-15

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