Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOther· [2024] KEELC 4350 (KLR)

Gitau & another (Suing as Trustees of Full Gospel Churches of Kenya) v Ocholla & 2 others (Environment & Land Case 171 of 2018) [2024] KEELC 4350 (KLR)

Environment and Land Court
30 May 2024
2,552 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan land court refused an injunction over disputed Mathare plots because the applicant couldn't prove ownership, but froze all activity pending the full trial.

What this practically means

#

Executive summary

#
The 3rd Defendant moved the court by Notice of Motion dated 14th November 2023 seeking an interlocutory injunction restraining the Plaintiffs, trustees of Full Gospel Churches of Kenya, from trespassing on, constructing on or disposing of Plot D Mathare North Commercial Zone and eight other plots, and seeking preservation of the properties. He claimed to be the bona fide owner and that the Plaintiffs were trespassing and constructing. The Plaintiffs, through Rev. John Karuri, opposed, asserting the church was allotted the land in 1993, that the 3rd Defendant was a former pastor who left with the original allotment letter, and that he had previously acknowledged the church's ownership through a Safaricom agreement. Applying the Giella v Cassman Brown test as restated in Nguruman, the court found the 3rd Defendant failed to establish a prima facie case: he produced neither allotment letters nor a survey map, nor proof of how he acquired ownership. Consequently he could not suffer irreparable injury. The court noted, however, that the Plaintiffs' receipts also fell short of proof of ownership by allotment. Since ownership was unresolved and pending before the court, it adopted a status quo order rather than an injunction, holding such orders preserve the situation without proof of right. The court ordered the status quo maintained, no transactions, and all ongoing construction to cease, with costs in the cause.

Key legal issues

#
01

Whether the 3rd Defendant established a prima facie case

Holding

He did not; he presented neither the allotment letters nor the survey map and did not establish how he obtained ownership

Reasoning

The court examined the documents exhibited by both sides. The 3rd Defendant relied on prior court orders and photographs, but produced no allotment letter or survey map proving ownership. The Plaintiffs produced correspondence and receipts, though these too fell short of proof of ownership by allotment. Without proof of any right apparently infringed, the prima facie case test in Mrao was not met.

p. 4
02

Whether irreparable injury would be suffered

Holding

No; without any established legal right or proximity to the property, the applicant cannot suffer irreparable injury

Reasoning

Having found no prima facie case, the court held the second limb could not be satisfied. Applying the Halsbury definition, irreparable injury is substantial injury not adequately remediable by damages. The applicant, lacking demonstrated rights over the property, stood to suffer no such injury from the Plaintiffs' activities.

p. 4
03

Whether a status quo order was appropriate

Holding

Yes; where ownership is unresolved, the prevailing situation should be preserved without any construction, alienation or transaction by either party

Reasoning

Noting that neither party had presented evidence of ownership and that the ownership question was pending, the court found preservation of the existing state of affairs appropriate. Relying on TSS Spinning and KALPA and the Baobab Beach Resort exposition, it held status quo orders preserve the situation without requiring proof of right, and issued orders restraining all parties from further construction or transactions.

p. 4

Legal principles established

#
  • 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
  • A status quo order is distinct from an injunction and does not depend on proof of right or prima facie case

Court orders

#
  1. 1.Current status quo of the suit properties (Plot D Mathare North Commercial Zone, Plot Numbers 225, 134, 236A, 133, 234A, 237A, 222, 223, 226 and 227A) to be maintained, with no transactions including construction, alienation, charging, mortgaging, leasing or transferring until the suit is heard and determined
  2. 2.No further constructions or development by the Plaintiffs or the Defendants on the suit property; ongoing constructions to forthwith cease pending hearing and determination of the suit
  3. 3.Costs of the application to be in the cause

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 40 Rule 1

Cases cited (6)

  • 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
  • TSS Spinning & Weaving Company Ltd vs Nic Bank Limited & another
    [2020] eKLR
  • Kenya Airline Pilots Association (KALPA) vs Co-operative Bank of Kenya Limited & another
    [2020] eKLR
  • Republic vs The Chairperson Business Premises Rent Tribunal at Mombasa (Bench Mochache) Exparte Baobab Beach Resort (Mombasa Limited) & Monica Clara Schriel as quoted in Saifudeen Abdullahi & 4 Others
    [2013] eKLR
Jurisdiction invoked
Order 40 Rule 1 of the Civil Procedure Rules, 2010 (interlocutory injunction application within pending suit)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Gitau & another (Suing as Trustees of Full Gospel Churches of Kenya) v Ocholla & 2 others (Environment & Land Case 171 of 2018) [2024] KEELC 4350 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4350/eng@2024-05-30

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