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ELCPartially AllowedNot stated in the judgment (plaint dated 5/6/2024)· [2024] KEELC 7336 (KLR)

Muconjo & 49 others (Suing as purchasers and unit owners of apartments at the development known as Digra Phase 1 Apartments) v Digro Holdings and Construction Limited & another (Environment & Land Case E092 of 2024) [2024] KEELC 7336 (KLR)

Environment and Land Court
23 October 2024
BEB M Eboso
2,345 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Thika court stopped a developer from charging or further developing apartment-estate land, but buyers must still prove their bigger claims at trial.

What this practically means

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Executive summary

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Fifty purchasers of apartment units in the Digro Phase 1 and 2 developments on land parcels Ndumberi/Riabai/7075 and 7757 sued the developers seeking specific performance of sale agreements, conversion to sectional titles, declarations that additional roof-top and retail developments on common areas are unlawful, mandatory injunctions, formation of a management company, revocation of an amalgamated title, and general damages. Together with the plaint they sought interlocutory relief, including temporary injunctions against further dealings and unapproved construction, incorporation of a management company, and a site visit by the Deputy Registrar. The respondents denied wrongdoing, asserting that some purchasers had not completed payment, that titling, basement parking completion and management company incorporation were pending, and that the Land Registry lacked the framework to register management corporations. The court framed two questions: whether the ordinary and mandatory injunction criteria were met. Applying Giella v Cassman Brown, it found a prima facie case, inadequacy of damages, and the balance of convenience favouring preservation of the land. It declined mandatory injunctions on the Locabail principle, holding the disputes required trial proof. The court granted prohibitory orders restraining the defendants from charging the suit titles or undertaking new unapproved developments for 12 months, within which the plaintiffs were to prosecute the suit, with costs of the application in the cause.

Key legal issues

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01

Whether the plaintiffs established a prima facie case and the other Giella criteria for an ordinary interlocutory injunction

Holding

Yes - the plaintiffs demonstrated a prima facie interest in their units and the suit land, inadequacy of damages, and the balance of convenience favoured preservation

Reasoning

The contracts were not disputed and plaintiffs were in possession. The respondents admitted pending titling, management company incorporation and incomplete amenities. Uncontroverted allegations of additional unapproved developments and amalgamation of titles without consent satisfied the first limb; damages were inadequate; and the balance of convenience favoured preservation of the land and original development plans pending trial.

p. 4
02

Whether a mandatory injunction should issue at the interlocutory stage

Holding

No - the case was not clear, the allegations were denied and required proof at trial, and no special circumstances existed

Reasoning

Some reliefs sought were final and mandatory in nature. The respondents denied key allegations, and those disputes could only be resolved after a proper trial. Applying Locabail International Finance Ltd v Agroexport, a higher degree of assurance is required for mandatory interlocutory injunctions, which the applicants did not meet.

p. 5

Legal principles established

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  • A mandatory injunction should not be granted on an interlocutory application absent special circumstances, and only in clear cases, requiring a higher standard of assurance than a prohibitory injunction
  • At the interlocutory stage the court does not make conclusive findings on the key issues in the suit; such findings are reserved for trial
  • The Giella v Cassman Brown criteria govern the grant of an ordinary injunction

Court orders

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  1. 1.Pending the hearing and determination of this suit, the defendants are restrained against charging title numbers Ndumberi/Riabai/7075 and Ndumberi/Riabai/7757
  2. 2.Pending the hearing and determination of this suit, the defendants are restrained against undertaking on the said lands any new developments that were not in the original approved development plans
  3. 3.The above orders will be in place for only 12 months, during which period the plaintiffs are expected to prosecute their suit
  4. 4.Costs of the application shall be in the cause

Authorities

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Legislation

  • Sectional Properties ActSections 26, 43
  • Physical and Land Use Planning Act, No. 13 of 2019Section 42(2)
  • Environmental Management and Co-ordination ActSection 58

Cases cited (2)

  • Giella v Cassman Brown
    [1973] EA 358
  • Locabail International Finance Ltd. V. Agroexport and others
    [1986] 1 ALL ER 901
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit properties (not expressly cited in the extract)

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, "Muconjo & 49 others (Suing as purchasers and unit owners of apartments at the development known as Digra Phase 1 Apartments) v Digro Holdings and Construction Limited & another (Environment & Land Case E092 of 2024) [2024] KEELC 7336 (KLR)", Case Analysis (2024). Not stated in the judgment (plaint dated 5/6/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7336/eng@2024-10-23

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