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ELCDismissed· [2025] KEELC 3473 (KLR)

Land and Housing Cooperative Society v Disow & another (Environment & Land Case E043 of 2024) [2025] KEELC 3473 (KLR)

Environment and Land Court
30 April 2025
NMN.A. Matheka
2,193 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (N.A. Matheka, J) on a notice of motion dated 3rd June 2024 brought by the Plaintiff under Sections 3, 3A and 63 of the Civil Procedure Act and Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules, 2010. The Plaintiff, claiming to be the legal and equitable owner of LR No. 20870 IR 80679, LR No. 20871 IR 76273, LR No. 31107 and resultant parcels (Title Nos. Mavoko Municipality Block 89/2 to 89/130), sought temporary injunctions restraining the Defendants from trespassing, constructing, selling, auctioning, transferring or otherwise interfering with the parcels, and restraining the Registrar of Title from effecting any transfers or registrations, with costs in the cause. The Defendants asserted they were the lawful registered owners of LR No. 20870 (deed plan No. 211352), allocated on 13th May 1998 with a certificate of title issued on 1st September 2022, and that they had enjoyed quiet possession including a boundary wall erected in 2022. The court applied the Giella v Cassman Brown principles as restated in Nguruman Limited v Jan Bonde Nielsen, and authorities on prima facie case, irreparable injury and balance of convenience. Finding that it had not been able to interrogate the competing documents, the court held there was a lower risk of injustice in refusing the injunction. The application was dismissed with costs and the parties directed to comply with Order 11 and fix the suit for hearing.

Key legal issues

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01

Whether the Plaintiff established a prima facie case

Holding

The court was not satisfied, noting conflicting claims of title and the inability to test the documents at the interlocutory stage

Reasoning

The Plaintiff claimed legal and equitable ownership of LR No. 20870 IR 80679, LR No. 20871 IR 76273 and LR No. 31107 and resultant parcels, while the Defendants claimed to be registered owners allocated the land on 13th May 1998 with a certificate of title issued on 1st September 2022. The court could not interrogate the competing documents on the affidavits alone, so no prima facie case was established to the standard required by Mrao Ltd v First American Bank.

p. 4
02

Whether the balance of convenience favoured granting the injunction

Holding

The balance of convenience favoured refusing the injunction

Reasoning

Applying the lower-risk-of-injustice principle from Amir Suleiman v Amboseli Resort Limited, the court held that refusing the injunction carried a lower risk of injustice than granting it, given that neither party's documents had been tested and the Defendants asserted registration and quiet possession since allocation in 1998. The matter should proceed to full hearing where the competing titles can be examined.

p. 4

Legal principles established

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  • The three Giella v Cassman Brown conditions are sequential hurdles an applicant for an interlocutory injunction must surmount
  • Where the court is unable to interrogate the competing documentation on an interlocutory application, the lower risk of injustice guides the exercise of discretion

Court orders

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  1. 1.The notice of motion dated 3rd June 2024 seeking a temporary injunction is dismissed with costs
  2. 2.Parties are advised to comply with Order 11 and fix the matter for hearing

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A & 63
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2 & 4
  • Civil Procedure Rules, 2010Order 11

Cases cited (7)

  • Giella v Cassman Brown
    [1973] EA 358
  • Nguruman Limited versus Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 [2014] eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd
    [2003] EKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR
  • Paul Gitonga Wanjau v Gathuthis Tea Factor Company Ltd & 2 others
    [2016] eKLR
  • Amir Suleiman v Amboseli Resort Limited
    [2004] eKLR
  • Robert Mugo Wa Karanja v Ecobank (Kenya) Limited & Another
    [2019] eKLR
Jurisdiction invoked
Sections 3, 3A & 63 of the Civil Procedure Act and Order 40 Rules 1, 2 & 4 of the 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, "Land and Housing Cooperative Society v Disow & another (Environment & Land Case E043 of 2024) [2025] KEELC 3473 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3473/eng@2025-04-30

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