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ELCDismissedELC LC 18 of 2024· [2024] KEELC 4304 (KLR)

Scaria v Karuga & 2 others (Environment & Land Case 18 of 2024) [2024] KEELC 4304 (KLR)

Environment and Land Court
28 May 2024
AOA. O. Ombwayo
1,716 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A registered title alone won't get you a Kenyan injunction if the other side already occupies the land and you can't prove harm money can't fix.

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 Nakuru (A. O. Ombwayo, J) on a notice of motion dated 26th February 2024 by George Scaria, the applicant, seeking a temporary injunction against Hellen Tibi Karuga, Elif Safaris Limited and the Land Registrar Nakuru restraining interference with parcel Kiambogo/Kiambogo Block 2/515 pending determination of the suit. The applicant claimed to be the registered owner, having purchased the parcel from the 2nd defendant in December 2023, paid the full purchase price and obtained a title deed on 23rd January 2024. He alleged that the 1st respondent obstructed his fencing of the land, claimed it belonged to her deceased husband Abraham Tibi Karuga Gachuhi, and used police to harass him. The 1st respondent countered that the applicant's title was obtained unprocedurally, as she still held the original title in her deceased husband's name. The court applied the Giella v Cassman Brown test as restated in Nguruman Limited v Jan Bonde Nielsen. It found a prima facie case since the property is registered in the applicant's name, but noted the root of his title was under challenge, the 1st respondent holding the original title. However, the applicant failed to establish irreparable injury, there being no evidence of wastage, and the balance of convenience favoured the 1st respondent, who is in possession, an injunction amounting to an eviction. The application was dismissed with costs in the cause.

Key legal issues

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01

Prima facie case

Holding

A prima facie case was established as the property is registered in the applicant's name, but the root of his title is under challenge

Reasoning

The court found the applicant's certificate of title under challenge since the 1st respondent still holds the original title in the name of her deceased husband, and it is unclear how Moses Maina Kariuki, an intermediate owner, became registered. Nonetheless, since the property is registered in the applicant's name, a prima facie case with likelihood of success was found.

p. 4
02

Irreparable injury

Holding

The applicant failed to demonstrate irreparable injury

Reasoning

The court found no evidence that the applicant would suffer harm incapable of compensation in damages, noting there was no evidence the property was being wasted and no demonstration that the defendant could not compensate him if he succeeded in the suit.

p. 4
03

Balance of convenience

Holding

The balance of convenience tilted against granting the injunction

Reasoning

The 1st respondent is in possession of the land; an injunction in the applicant's favour would effectively evict her and cause her greater inconvenience. The applicant therefore failed the third Giella/Nguruman hurdle sequentially.

p. 4

Legal principles established

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  • The conditions for a temporary injunction are prima facie case, irreparable injury and balance of convenience, applied as sequential hurdles
  • Where the respondent is in possession, granting an injunction may amount to an eviction, tilting the balance of convenience against the applicant

Court orders

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  1. 1.The notice of motion dated 26th February 2024 seeking a temporary injunction is dismissed
  2. 2.Costs in the cause

Authorities

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Cases cited (5)

  • Giella versus Cassman Brown
    (1973) EA 358
  • Nguruman Limited versus Jan Bonde Nielsen & 2 others
    CA No. 77 of 2012 (2014) eKLR
  • Mrao Ltd versus First American Bank of Kenya Ltd
    (2003) EKLR
  • Pius Kipchirchir Kogo vs Frank Kimeli Tenai
    (2018) eKLR
  • Paul Gitonga Wanjau vs Gathuthis Tea Factor Company Ltd & 2 others
    (2016) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (notice of motion for temporary injunction pending hearing of the 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, "Scaria v Karuga & 2 others (Environment & Land Case 18 of 2024) [2024] KEELC 4304 (KLR)", Case Analysis (2024). ELC LC 18 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4304/eng@2024-05-28

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