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ELCPartially AllowedELC Case (Notice of Motion dated 13th June 2023) — suit arising from ELC 771 of 2017 (Machakos, transferred to Kajiado)· [2024] KEELC 3529 (KLR)
Kibunja v Githongori & another (Environment & Land Case E052 of 2023) [2024] KEELC 3529 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#A Kenyan landowner with an unchallenged court judgment won a court order blocking anyone from selling, transferring, or touching his Isinya plot until the case is decided.
What this practically means
#Executive summary
#This was a ruling on the Plaintiff's Notice of Motion dated 13th June 2023 seeking an interim injunction restraining the 1st and 2nd Defendants from interfering with, dealing with or alienating Plot Number A250 (Formerly 45) Isinya, and a declaration that a letter dated 26th January 2023 from the County Land Registrar (Chairman ADRC) is null and void in light of the judgment in ELC 771 of 2017. The application was supported by the affidavit of Michael Ng'ang'a Kibunja and opposed by the 1st Defendant's replying affidavit; the 2nd Defendant filed a preliminary objection but no response to the motion, and no submissions on it. The court, canvassing the motion by written submissions, framed two issues: whether the applicant met the threshold for a temporary injunction, and costs. Applying the Giella v Cassman Brown principles, the court found the applicant had bought the plot in 1991, had obtained a judgment on 10th June 2018 (C. Ochieng J) declaring him owner of the plot, which was never appealed or set aside, and that the 1st Defendant resurfaced during a 2022 County Government of Kajiado verification exercise. A prima facie case, irreparable loss (risk of title issuing to the 1st Defendant) and balance of convenience were all established. The court granted a temporary injunction against both Defendants pending hearing of the suit but declined to grant the declaration sought at the interlocutory stage. Costs of the application were ordered to abide the outcome of the main suit.
Key legal issues
#01
Threshold for temporary injunction
Holding
The Giella v Cassman Brown principles apply and were satisfied on the facts
Reasoning
Applying Giella v Cassman Brown, the court found the applicant had a subsisting judgment (ELC 771 of 2017, C. Ochieng J, 10th June 2018) declaring him owner of the plot which had never been set aside or appealed, that he would suffer irreparable loss if the 1st Defendant were issued title documents, and that the balance of convenience favoured him.
p. 3
Legal principles established
#- An applicant for a temporary injunction must show a prima facie case with probability of success, that damages would not be an adequate remedy, and if in doubt the court decides on a balance of convenience.
- A party with an un-set-aside judgment in his favour establishes a prima facie case for interlocutory relief over the same property.
Court orders
#- 1.A temporary injunction restraining the 1st and 2nd Defendants, whether by themselves, their agents, servants and or employees, from interfering with and or in any manner dealing with plot No. A 250 (Formerly 45) Isinya, or remaining on, alienating or disposing of the suit property pending the hearing and determination of the suit.
- 2.Costs of the application to abide the outcome of the main suit.
- Jurisdiction invoked
- Sections 1A, 1B and 3A and Order 40 Rules 1, 2 & 3 and Order 50 Rule 1 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibunja v Githongori & another (Environment & Land Case E052 of 2023) [2024] KEELC 3529 (KLR)", Case Analysis (2024). ELC Case (Notice of Motion dated 13th June 2023) — suit arising from ELC 771 of 2017 (Machakos, transferred to Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3529/eng@2024-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.