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ELCPartially AllowedNot stated in excerpt (Notice of motion dated 29th January 2024)· [2024] KEELC 5051 (KLR)

Kiarie v Kihiko & 2 others (Environment & Land Case E003 of 2024) [2024] KEELC 5051 (KLR)

Environment and Land Court
3 July 2024
SKS. M. Kibunja
3,194 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court blocked construction and sale of disputed Nyali land pending trial, but refused to order demolition of existing structures.

What this practically means

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Executive summary

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The plaintiff, registered owner of land known as C.R 11673, L.R No. 1270/I/MN in Nyali (as declared in Mombasa ELCMISC 58 of 2008), moved the Environment and Land Court at Mombasa by notice of motion dated 29th January 2024 seeking a temporary injunction restraining the 1st defendant from encroaching on or remaining on the suit property, and a mandatory order compelling him to demolish structures on it. She alleged a transfer of the property to the 1st defendant registered on 30th May 2022 was fraudulent and that she never received the stated consideration of Kshs 35 million. The 1st defendant countered that the transfer arose from years of loan advancements totalling Kshs 35 million, that he is the registered proprietor, and that a joint venture with Summertimes Homes Limited was already constructing flats sold off-plan. The court framed two issues: the injunction threshold and costs. Applying Nguruman and Mrao, it found a prima facie case because the 1st defendant failed to produce documentary proof of the disputed loans or sale agreement, possibly contravening section 3 of the Law of Contract Act. Irreparable damage was not established since the harm is quantifiable in damages. Nonetheless, the balance of convenience favoured the plaintiff, given the risk of numerous third-party suits if construction and sales continued under a seriously challenged title. Citing Kaloki, Kenya Breweries v Okeyo and Shariff Abdi Hassan, the court declined the mandatory injunction, holding fraud allegations require full trial. The motion was allowed in terms of prayers 3 and 4 only, with costs to abide the outcome of the suit.

Key legal issues

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01

Prima facie case

Holding

The plaintiff established a prima facie case with probability of success; the validity of the 1st defendant's title is under serious challenge

Reasoning

Though the 1st defendant alleged loans totalling Kshs 35 million culminating in the transfer, the plaintiff disputed all but Kshs 4 million. The defendant produced no documentary proof of the disputed loans or the sale agreement, raising possible contravention of section 3 of the Law of Contract Act. That is for trial.

p. 4
02

Irreparable injury

Holding

Not established - any damage from construction is compensable in damages

Reasoning

Construction had changed the property's character, but nothing suggested the value or damage was incapable of ascertainment, nor that the 1st defendant could not meet an award in damages.

p. 4
03

Balance of convenience

Holding

Tilts in favour of granting the injunction, protecting the plaintiff and potential buyers while title is under challenge

Reasoning

Stopping construction would inconvenience the 1st defendant and off-plan buyers, but allowing sale and construction while title is seriously challenged would expose the plaintiff and future buyers to a litany of suits if the challenge succeeds.

p. 5
04

Mandatory injunction at interlocutory stage

Holding

Refused; allegations of fraud must be resolved at full trial

Reasoning

Mandatory injunctions are not normally granted interlocutorily absent special circumstances; the suit involves allegations of fraud and deceit requiring viva voce evidence before ownership can be pronounced on.

p. 6

Legal principles established

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  • An applicant for an interlocutory injunction must sequentially establish a prima facie case, irreparable injury and balance of convenience
  • A mandatory injunction may be granted interlocutorily only in clear cases or special circumstances

Court orders

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  1. 1.The notice of motion dated 29th January 2024 is allowed in terms of prayers 3 and 4 only (temporary injunction against the 1st defendant pending hearing and determination of the suit)
  2. 2.Costs to abide the outcome of the suit

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rule 1
  • Law of Contract Act, Chapter 23 of Laws of Kenyasection 3
  • Land Registration Act, No. 3 of 2012section 26
  • Civil Procedure Act, Chapter 21 of Laws of Kenyasection 27
  • Registration of Titles Act (repealed)section 60

Cases cited (7)

  • 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 versus Gathuthis Tea Factor Company Ltd & 2 Others
    (2016) eKLR
  • Joseph Kaloki t/a Royal Family Assembly versus Nancy Atieno Ouma
    [2020] eKLR
  • Kenya Breweries Limited & Another versus Washington O. Okeyo
    [2002] eKLR
  • Shariff Abdi Hassan Vs Nadhif Jama Adan
    [2006] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes; Order 40 Rule 1 Civil Procedure Rules, 2010

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, "Kiarie v Kihiko & 2 others (Environment & Land Case E003 of 2024) [2024] KEELC 5051 (KLR)", Case Analysis (2024). Not stated in excerpt (Notice of motion dated 29th January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5051/eng@2024-07-03

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