Boniface Kimani Chomba v Embakasi Ranching Company Limited & 2 others [2018] KEELC 3174 (KLR)
The bottom line
#A Kenyan court blocked the transfer of a Nairobi plot, confirming that unchallenged ownership documents and long possession can secure interim protection.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether to grant the prayer of a temporary injunction restraining the Defendants from entering into or transferring the suit property pending hearing and determination of the suit
Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success
He did, on the strength of an unopposed Non-Member Certificate of Plot Ownership issued by the 1st Defendant
The Plaintiff purchased the plot from the 1st Defendant in 1991 and annexed a Non-Member Certificate of Plot Ownership for Plot No. V3801, which became Nairobi/Block 136/5323 upon subdivision. None of the Defendants opposed the application or the document. The court, applying Mrao v First American Bank, found a genuine and arguable case showing an apparently infringed right.
Whether damages would be an adequate remedy
No; land is unique and damages would not adequately compensate the Plaintiff
Relying on Niaz Mohamed Jan Mohamed v Commissioner of Lands and JM Gichanga v Co-operative Bank, the court held that no amount of money can compensate the infringement of the right of possession over land, and that damages are not always a suitable remedy where a clear legal right or breach is established. Land is unique and no one parcel can be equated in value to another.
Where the balance of convenience lies
With the Plaintiff, who is in possession of the suit property
Applying Nguruman Ltd v Jan Bonde Nielsen, the court compared the inconvenience to each party. Since the Plaintiff is the party in possession of the suit plot, refusing the injunction would occasion him greater inconvenience than granting it would to the Defendants.
Legal principles established
#- Conditions for the grant of an interlocutory injunction: prima facie case with probability of success, irreparable injury not compensable in damages, and balance of convenience if in doubt
- In interlocutory applications the court makes no conclusive or definitive findings of fact or law
Court orders
#- 1.Temporary injunction restraining the Defendants/Respondents from entering into or transferring the parcel of land known as Nairobi Block 136/5323 pending the hearing and determination of this suit
- 2.Costs of the application to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over a land dispute (interlocutory application in a pending suit); no specific constitutional or statutory provision cited
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Having satisfied all the 3 conditions for the grant of a temporary injunction, this Application is allowed with costs to the Plaintiff.
My finding at this interlocutory stage is that the Plaintiff/Application has succeeded in demonstrating that he has a prima facie case with a probability of success at the main trial.
It is so ordered.
Issues in the judgment
#Judgment does not state the case number, and the name of the 2nd Defendant is not given anywhere in the judgment as provided
Judgment signed and dated 12th April 2018 by Justice Mary M. Gitumbi but delivered on 19th April 2018 by Justice Samson Okongo, described as 'PRESIDING JUDGE'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boniface Kimani Chomba v Embakasi Ranching Company Limited & 2 others [2018] KEELC 3174 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3174/eng@2018-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.