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ELRCAllowedNotice of Motion dated 26/9/2011 in suit filed 23/11/2006· [2013] KEELRC 297 (KLR)

MUGO MICHAEL NJAGE & OTHERS V NYAGA GICHINDANO [2013] KEELRC 297 (KLR)

High Court of Kenya (Environment and Land jurisdiction)
27 May 2013
BOB.N. Olao
789 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court stopped a landowner from quarrying and cutting trees because his own past statement showed he held the land in trust for his clan.

What this practically means

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Executive summary

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The court ruled on the plaintiff's Notice of Motion dated 26/9/2011 seeking an interlocutory injunction restraining the defendant from making bricks, digging quarries for building stones and hardcore, cutting trees, or otherwise interfering with the natural vegetation and geological status of land parcel EVURORI/EVURORI/17 pending the hearing of a suit filed on 23/11/2006 seeking determination of a trust and subdivision of the land. The plaintiff alleged the land was registered in the defendant's name to hold in trust for the Mururi clan. The defendant denied any trust, asserting sole ownership with the late Kirege Kirungia. Applying the Giella v Cassman Brown conditions, the court found a prima facie case: the defendant's own affidavit sworn on 21/5/1986 in Land Appeal Case No. 291 of 1985 deponed that he would not treat the land as his property but would hand it over to the Mururi clan. Relying on Gathiba v Gathiba as approved in Mukangu v Mbui, the court held that registration under the (now repealed) Registered Land Act does not relieve a proprietor of trustee obligations. The court further found that indiscriminate quarrying and destruction of vegetation might breach the Environmental Management and Coordination Act, so damages might not adequately compensate. The application was allowed with costs in the cause.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

A prima facie case was established that the defendant holds the suit land in trust for the Mururi clan

Reasoning

The defendant's own 1986 affidavit in Land Appeal Case No. 291 of 1985 deponed that he would not treat the land as his property but would hand it over to the Mururi clan. On that admission, the plaintiff's trust claim was well founded, satisfying the first Giella condition.

p. 2
02

Adequacy of damages

Holding

If the defendant continued indiscriminate quarrying and cutting of vegetation, damages may not be adequate compensation, potentially contravening the Environmental Management and Coordination Act

Reasoning

The court noted that indiscriminate interference with the natural vegetation and geological status of the land may transgress the Environmental Management and Coordination Act, making damages an inadequate remedy and tipping the second Giella condition in the plaintiff's favour.

p. 2

Legal principles established

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  • Registration of land under the Registered Land Act does not relieve a proprietor of trustee obligations

Court orders

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  1. 1.The defendant/respondent restrained from making bricks, digging quarries for building stones and hardcore, cutting trees or doing any other activity interfering with the natural vegetation and natural geological status of land parcel EVURORI/EVURORI/17 pending the hearing and determination of the suit
  2. 2.Costs in the cause

Authorities

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Legislation

  • Registered Land Act (now repealed)null
  • Environmental Management and Coordination Actnull

Cases cited (3)

  • GIELLA VS CASSMAN BROWN & COMPANY LTD
    1973 E.A. 358
  • GATHIBA VS GATHIBA
    2001 2 E.A 342
  • MUKANGU VS MBUI
    K.L.R (E & L) 1 at Page 622
Jurisdiction invoked
Original civil jurisdiction; interim injunctive relief pending hearing and determination of the suit

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, "MUGO MICHAEL NJAGE & OTHERS V NYAGA GICHINDANO [2013] KEELRC 297 (KLR)", Case Analysis (2013). Notice of Motion dated 26/9/2011 in suit filed 23/11/2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/297/eng@2013-05-27

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