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ELCDismissedNotice of Motion dated 2/06/2021 (appeal filed alongside Memorandum of Appeal)· [2024] KEELC 4604 (KLR)

Kiraguri & another v Indo Arica Finance Ltd (Environment and Land Appeal 4 of 2023) [2024] KEELC 4604 (KLR)

Environment and Land Court
10 June 2024
2,464 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

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A property owner lost his bid to stop an auctioned land transfer because he had already raised the same claims before, and the lender followed the required legal notices.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (Mogeni J) determined a Notice of Motion dated 2/06/2021 filed by the appellant, Joseph Wachira Kiraguri, in an appeal against a chargee's sale of his property, Nairobi/Block 76/4x8, by public auction on 11/12/2020. The applicant sought injunctive relief, joinder of the auction purchaser Stephen Kiramana Ilongi as an interested party, setting aside of the auction, and cancellation of any transfer to the purchaser, contending the sale contravened an existing court order and that statutory notices were not issued. The respondent opposed via a replying affidavit of its Managing Director, Leon Ndubai, arguing res judicata and abuse of process, and filed a preliminary objection that the court lacked jurisdiction as the dispute concerned a purely commercial exercise of statutory power of sale. The court first found the preliminary objection unmerited, holding that under Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act, the dominant issue was occupation and title to land. On the merits, applying Giella v Cassman Brown, the court held the applicant had no prima facie case: three prior applications seeking identical injunctive orders had been dismissed, two as res judicata; statutory notices of 9/04/2019, 23/08/2019 and 8/10/2019 were proved; any loss was compensable in damages; and the balance of convenience favoured the respondent. The application was dismissed with costs to the respondent, and the matter set down for mention on 15/07/2024 for directions on the appeal's disposal.

Key legal issues

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01

Whether the preliminary objection challenging jurisdiction was sustainable

Holding

The objection failed; the ELC has jurisdiction as the dominant issue is title to and occupation of land

Reasoning

The court applied Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act, which confer jurisdiction over disputes relating to land use, title and tenure. Although the respondent framed the matter as a purely commercial exercise of statutory power of sale, the court held the dominant issue was a claim to a proprietary interest in land allegedly unfairly denied, hence within the court's jurisdiction.

p. 4
02

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

Holding

No; prior applications were dismissed and statutory notices were issued

Reasoning

Applying the Giella v Cassman Brown principles and Mrao Ltd's definition of a prima facie case, the court noted that three earlier applications seeking the same injunctive orders had been dismissed, two for res judicata. The respondent proved service of the 90-day statutory notice, a further notice and the auctioneer's notice, undermining the applicant's case.

p. 6
03

Whether irreparable loss and balance of convenience favoured the applicant

Holding

No; any loss was compensable in damages and the balance of convenience favoured the respondent

Reasoning

Relying on Wairimu Mureithi v City Council of Nairobi, the court held that since the property had already been sold and the applicant's ownership claim was weak, any loss could be compensated by damages. Consequently the balance of convenience tilted towards the respondent and injunctive relief could not issue.

p. 6
04

Whether the application was res judicata

Holding

Yes; the same injunctive reliefs had been heard and dismissed three times by the lower court

Reasoning

The court traced the litigation history: CMCC No. 8971 of 2019 was dismissed on 27/02/2020; the application of 25/03/2020 was dismissed on 6/08/2020 as res judicata; and a third application was dismissed on 19/11/2020 as res judicata. The instant motion re-agitated identical injunctive prayers, so it was barred.

p. 6

Legal principles established

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  • A preliminary objection must be on a point of law founded on facts not in dispute; if evidence is required it is unsustainable
  • The Environment and Land Court has jurisdiction over disputes relating to occupation of and title to land even where a statutory power of sale is invoked, the dominant issue being the proprietary interest in land
  • No injunction should be granted where damages would be an adequate remedy and the defendant can pay them

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 2/06/2021 with costs to the Respondent
  2. 2.Matter to be mentioned on 15/07/2024 for further directions on the disposal of the appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13
  • Civil Procedure RulesOrder 40 Rules 1 and 2; Order 1 Rule 10
  • Civil Procedure ActSection 3A
  • Land Actstatutory power of sale provisions (not specifically numbered)

Cases cited (5)

  • Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd
    (1969) EA 696
  • Hasmukh Khetshi Shah Vs Tinga Traders ltd
    Civil Appeal No. 326 of 2002 (2002) KLR 4628
  • Giella Vs Cassman Brown and Co. Ltd
    (1973) EA 358
  • Mrao Ltd Vs First American Bank of Kenya and 2 others
    (2003) KLR 125
  • Wairimu Mureithi Vs City Council of Nairobi
    Civil Appeal No. 5 of 1979 KLR 332 396
Jurisdiction invoked
Article 162(2)(b) of the Constitution and sections 13(1)-(2) of the Environment and Land Court Act

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, "Kiraguri & another v Indo Arica Finance Ltd (Environment and Land Appeal 4 of 2023) [2024] KEELC 4604 (KLR)", Case Analysis (2024). Notice of Motion dated 2/06/2021 (appeal filed alongside Memorandum of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4604/eng@2024-06-10

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