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ELCDismissedNot stated in the excerpt (ruling on Plaintiffs' Notice of Motion dated 27th July, 2023)· [2024] KEELC 1161 (KLR)

Devi Limited & another v Muthui (Environment & Land Case E034 of 2023) [2024] KEELC 1161 (KLR)

Environment and Land Court
29 February 2024
3,791 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan land dispute court refused to block a buyer but froze the property's status entirely until the full case is heard.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Nairobi (Angote J) on the Plaintiffs' Notice of Motion dated 27th July 2023, which sought a prohibitory injunction restraining the Defendant from entering L.R. No. 2327/174 Karen Hardy and a mandatory injunction compelling demolition of a shed erected on 24th July 2023. The 2nd Plaintiff claimed she solely purchased the mother title L.R. No. 2327/102, which was registered in the name of the 1st Plaintiff company, Gevi Limited, whose nominee directors held shares in trust for her family; she alleged that the Defendant colluded with her late husband to fraudulently transfer the suit property to himself in 1993, and that her 42-year cultivation of the land extinguished his title by adverse possession. The Defendant asserted he was a bona fide purchaser for value under a Conveyance dated 22nd June 1993 executed by the company's directors, and that he had been in possession since. The court applied the Giella v Cassman Brown test as reinforced in Nguruman. It found no prima facie fraud, noting the same directors executed conveyances benefiting the 2nd Plaintiff's family, that a DCI investigation and a DPP review found no criminal culpability, that the adverse possession allegations lacked evidential support, and that only two rates receipts substantiated the claim of 30 years of rate payments. The threshold for a mandatory injunction, being higher, was also not met. The application was dismissed with costs in the cause, but the court invoked Order 40 Rule 1 to order maintenance of the status quo as at the date of the ruling - no new title, no disposition, and no change to the property including eviction, demolition, farming, construction or development by either party - pending the hearing and determination of the suit.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case for a prohibitory injunction

Holding

They did not; the conveyance was executed by the 1st Plaintiff's directors, no prima facie fraud was shown, the DCI investigation and DPP review found no criminal culpability, and the adverse possession and rates-payment allegations were unsupported.

Reasoning

The court applied the Giella v Cassman Brown test as explained in Nguruman. The mother title was transferred to the 1st Plaintiff company, and the same directors who signed the conveyance to the Defendant also executed conveyances in favour of the 2nd Plaintiff's family members, which she did not challenge. The DCI Land Fraud Unit recommended closure of the file and the DPP found no criminal culpability. The adverse possession claim lacked evidential support, with aerial photographs showing trees and shrubs rather than crops, and only two rates receipts were produced against a claim of 30 years of payments.

p. 5
02

Whether a mandatory injunction to demolish the Defendant's structure should issue at the interlocutory stage

Holding

No; having failed the prima facie test, the Plaintiffs could not show a clear case, and no special circumstances existed.

Reasoning

The court applied Kenya Breweries v Okeyo and Locabail, holding that a mandatory interlocutory injunction requires special circumstances and a clear case, with a higher degree of assurance than for prohibitory injunctions. The photographs annexed as evidence of damage did not show a destroyed fence or corrugated iron shed, and the Defendant alleged the 2nd Plaintiff herself brought down the shed despite interim status quo orders. Neither party lived on or depended on the property for livelihood.

p. 6
03

Whether preservation orders should nonetheless issue pending trial

Holding

Yes; the court exercised its discretion under Order 40 Rule 1 to maintain the status quo as at the date of the ruling.

Reasoning

Although the motion failed, the court noted the suit property was prime property, there were competing claims requiring further interrogation, the 2nd Plaintiff had allegedly defied earlier interim orders and attempted to procure another title for her daughter. To avert danger and meet the ends of justice, the court ordered maintenance of the status quo as at the delivery of the ruling, restraining any issuance of a new title, any disposition, and any change to the property including eviction, demolition, farming, construction or development by either side.

p. 7

Legal principles established

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  • The triple test for temporary injunctions requires a prima facie case, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience, applied as sequential hurdles
  • A company is a separate legal person from its members, so the acts of its directors bind the company
  • A mandatory injunction should not normally be granted at the interlocutory stage absent special circumstances and a clear case
  • Under Order 40 Rule 1 the court may make any order it thinks fit to preserve property subject matter of a suit even where an injunction is refused

Court orders

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  1. 1.The Notice of Motion dated 27th July, 2023 lacks merit and is hereby dismissed
  2. 2.An order that the status quo prevailing as at the date of delivery of the ruling be maintained, entailing: no issuance of a new title over the suit property; no advertising for sale, selling, transferring, leasing, charging or disposing of the suit property or any portion thereof; no change of the status of the suit property in any manner whatsoever including eviction, cutting down of trees, demolition, farming, construction or development by both the Plaintiffs and the Defendant or anyone claiming under them
  3. 3.The status quo order to remain in force pending the hearing and determination of the suit
  4. 4.The costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (8)

  • Giella v Cassman Brown Limited
    (1973) EA 358
  • EA Industries v Trufoods
    [1972] EA 420
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    CA No. 77 of 2012 (2014) eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd
    (2003) eKLR
  • Salomon v Salomon & Co
    (1897) AC 22
  • Kenya Breweries Limited & Another v Washington O. Okeyo
    [2002] eKLR
  • Locabail International Finance Ltd. v Agroexport and Others
    [1986] 1 ALL ER 901
  • Maher Unissa Karim v Edward Oluoch Odumbe
    (2015) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land; interlocutory application under Order 40 Rule 1 of the Civil Procedure Rules

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, "Devi Limited & another v Muthui (Environment & Land Case E034 of 2023) [2024] KEELC 1161 (KLR)", Case Analysis (2024). Not stated in the excerpt (ruling on Plaintiffs' Notice of Motion dated 27th July, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1161/eng@2024-02-29

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