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ELCDismissedNot stated on the face of the extract (Notice of Motion dated 23rd June 2021)· [2024] KEELC 990 (KLR)

Kenya Lime Products Limited v Kalunde & 9 others (Environment & Land Case 17 of 2021) [2024] KEELC 990 (KLR)

Environment and Land Court
21 February 2024
2,579 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed an injunction because the applicant's lease had expired, leaving no protectable legal interest in the land.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Makindu (T. Murigi, J) delivered on 21st February 2024 on a Notice of Motion dated 23rd June 2021 brought by the Plaintiff, a company through its Managing Director Leonard Mutua Musyoka, under Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Section 68 of the Land Registration Act, 2012. The Plaintiff sought temporary injunctions restraining the Defendants from entering, trespassing, damaging or dealing with LR No. 1425 Makindu within Makueni County, an order of inhibition against registration of dealings over the land, enforcement by the OCS Makindu, and costs. The Plaintiff claimed ownership via a transfer of shares in 1999, asserted continued farming and payment of rates, and alleged that on 17th June 2021 the Defendants demolished its fence and dwelling house. The 10th Defendant denied trespass, asserting he was a long-time neighbour and that the Plaintiff's lease had expired over eight years earlier, denying it locus standi. The 1st-9th and 11th Defendants adopted the same position, contending the lease expired in 2009 (the court found 1999) and the land reverted to the County Government of Makueni, and that the Plaintiff concealed material facts. Applying Giella v Cassman Brown sequentially as explained in Nguruman and Commercial Finance Co. Ltd v Afraha Education Society, the court found that the lease had expired and the Plaintiff had no legal interest in the suit property, hence no prima facie case with a probability of success. The remaining limbs were not considered. The application was dismissed with costs to the Respondents.

Key legal issues

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01

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

Holding

No. The lease under which the Plaintiff claimed expired in or about 1999 and was only pending renewal; the Plaintiff therefore had no legal interest in the suit property

Reasoning

The Plaintiff's claim was anchored on a 99-year lease granted on 14th June 1913 to Hilda McDonell, expiring 31st August 1999. Although the County Government of Makueni's letter of 20/4/2011 showed the lease was pending renewal, no renewal had issued. The Plaintiff also failed to prove payment of rates and rent as deponed. A prima facie case per Mrao requires an apparently infringed right; with the lease expired, the Plaintiff had no legal interest and thus no prima facie case.

p. 5
02

Whether the remaining Giella limbs (irreparable injury and balance of convenience) required consideration

Holding

No. The conditions are to be applied sequentially; failure on the first limb disposes of the application

Reasoning

Relying on Nguruman Limited v Jan Bonde Nielsen and Commercial Finance Co. Ltd v Afraha Education Society, the court held that the three conditions are separate and distinct logical hurdles. Where an applicant has no registered interest in the land and no prima facie case, no interlocutory injunction is available, and the court need not address the other conditions.

p. 6

Legal principles established

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  • The Giella conditions for an interlocutory injunction are separate, distinct and logical hurdles to be surmounted sequentially; if no prima facie case is established, irreparable injury and balance of convenience need no consideration

Court orders

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  1. 1.The application dated 23rd June 2021 is dismissed
  2. 2.Costs of the application are awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rule 1
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Land Registration ActSection 68

Cases cited (6)

  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Mrao Ltd V First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Mary Wambui Kamau & 2 others v Richard Kirimi Kinoti
    [2015] eKLR
  • Nyeri Chemists Limited v Jane Wanjiku Muriithi & 3 others
    [2016] eKLR
  • Commercial Finance Co. Ltd vs Afraha Education Society & Others
    C A Civil Appeal No. 142 of 1999
Jurisdiction invoked
Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Section 68 of the Land Registration Act, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Lime Products Limited v Kalunde & 9 others (Environment & Land Case 17 of 2021) [2024] KEELC 990 (KLR)", Case Analysis (2024). Not stated on the face of the extract (Notice of Motion dated 23rd June 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/990/eng@2024-02-21

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