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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 5746 (KLR)

Naker & 3 others v Thairu (Environment & Land Case 12B of 2024) [2024] KEELC 5746 (KLR)

Environment and Land Court
30 July 2024
GKG Kemei
2,675 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiffs/Applicants, partners of Aarem Investments Ltd and the executrixes of the Estate of the late Kantaben Ramniklal Naker, moved the court by a Notice of Motion dated 18/9/2023 seeking an injunction restraining the Defendant/Respondent, Michael M.K Thairu, from dealing with land reference number 4953/1977. They relied on a 1991 sale agreement between their late father and the Respondent for Kshs 600,000/-, contending the purchase price was fully paid, rates were paid by the family, and that delays including succession proceedings and the Thika ELC suit Michael Kimani Thairu v Peter Kinyanjui Gedraph & Another had prevented transfer of title. They alleged the Respondent's erection of a 'For sale' sign threatened unlawful disposal of the property. The Respondent opposed, contending the Applicants were strangers to the agreement, had never occupied the land, and that the claim was time barred under Sections 7 and 18 of the Limitation of Actions Act, citing Monata Matiko Chonchorio v John Marwa Chabaro. The sole issue framed was whether the Applicants met the criteria for a temporary injunction under Giella v Cassman Brown as restated in Nguruman Limited v Jan Bonde Nielsen. The court found a prima facie case since the sale agreement was not contested, but held the Applicants failed to demonstrate irreparable injury not compensable in damages. On balance of convenience, the court noted the unrefuted 'For sale' sign and held that limitation and beneficial ownership were matters for trial. Invoking Order 40 Rule 1, the court granted a status quo order preventing wasting, alienation or sale of the suit property pending hearing of the suit, allowed the application, and ordered costs in the cause.

Key legal issues

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01

Whether the Applicants established a prima facie case

Holding

Yes - the sale agreement annexed was not contested by the Respondent, who only alluded to time bar

Reasoning

The court examined the sale agreement (JN5) between the Respondent and Aarem Investments, noting it provided for the purchase price of Kshs 600,000/- and identified the land. Although undated, the Respondent did not contest the agreement itself but merely suggested the claim was time barred. On that material, the court found the Applicants had demonstrated a legal right apparently infringed, sufficient at the prima facie stage under the Mrao Ltd definition.

p. 4
02

Whether the Applicants demonstrated irreparable injury

Holding

No - the injury alleged was capable of compensation in damages

Reasoning

Applying the test in Pius Kipchirchir Kogo v Frank Kimeli Tenai, the court required injury that cannot be adequately compensated in damages. Despite the Applicants' submission that the Respondent's 'For sale' sign threatened fraudulent disposal of their proprietary interest, the court was not persuaded that the harm feared could not be met by an award of damages at the conclusion of the suit.

p. 5
03

Whether the balance of convenience favours the Applicants

Holding

Considered in the context of the Respondent's unrefuted act of advertising the suit land for sale; the court framed a status quo order instead

Reasoning

The court noted the Respondent had not refuted the Applicants' averment that he put up a 'For sale' sign on the suit land, justifying their apprehension of disposal. It also held that limitation and beneficial ownership were evidentiary matters for full trial. Guided by Order 40 Rule 1, which empowers the court to make orders staying and preventing wasting or alienation, the court granted a status quo order rather than the full injunction sought.

p. 5

Legal principles established

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  • An applicant for a temporary injunction must sequentially establish a prima facie case, irreparable injury and balance of convenience
  • Whether a claim is time barred is a matter of evidence determinable at full hearing, not on an interlocutory application

Court orders

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  1. 1.A status quo order staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the suit property pending the hearing and determination of the suit
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActOrder 40 rule 1
  • Limitation of Actions ActSections 4(1)(a), 7 and 18
  • Law of Contract ActSection 3(3)

Cases cited (6)

  • Giella Vs. Cassman Brown & Co Ltd
    (1973) EA 358
  • Nguruman Limited versus Jan Bonde Nielsen & 2 Others
    CA No.77 of 2012 (2014) eKLR
  • Mrao Ltd Vs. First American Bank of Kenya Ltd
    (2003) eKLR
  • Pius Kipchirchir Kogo Vs. Frank Kimeli Tenai
    (2018) eKLR
  • Monata Matiko Chonchorio Vs. John Marwa Chabaro
    [2012] eKLR
  • Michael Kimani Thairu Vs. Peter Kinyanjui Gedraph & Another
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; interim relief under Order 40 rule 1 of the Civil Procedure Rules

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, "Naker & 3 others v Thairu (Environment & Land Case 12B of 2024) [2024] KEELC 5746 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5746/eng@2024-07-30

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