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ELCDismissedNotice of Motion dated 9th May 2019 in ELC suit transferred from the High Court at Naivasha (filed 9th May 2019)

Ndungu Gatigithu & 5 others v Kiambiriria Investment Company Limited [2019] KEELC 76 (KLR)

Environment and Land Court
19 December 2019
DOD. O. Ohungo
1,281 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop a company collecting rent from land owned by 18 people because the owners can be paid back in money later.

What this practically means

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Executive summary

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The plaintiffs, among the 18 persons registered since 15th July 1969 as tenants in common of LR 1144/21/XXIV in Naivasha Township, sought interlocutory orders restraining the defendant company from collecting rental proceeds from the suit property, requiring rents to be deposited into the registered owners' KCB account, and restraining the defendant from dealing with the property pending trial. The plaintiffs alleged that from 2018 the defendant's directors took over management of the premises and directed tenants to pay rent into a Co-operative Bank account operated by the defendant, depriving the registered proprietors of income. The defendant, said to have been incorporated in 2010 by some of the joint proprietors, claimed it was formed to hold the proprietors' interests and denied any intention to sell the property, explaining the new account by the departure of a KCB signatory. The court applied the Giella test as restated in Nguruman Limited. It found the plaintiffs had established a prima facie case, since the uncontested title showed the 18 registered proprietors remained owners and the defendant's claim of ownership lacked evidence. However, the court held that the dispute was essentially monetary - control of rental income - and because the rent was known, damages were easily ascertainable and adequate, with no indication the defendant could not pay. The plaintiffs failed the second limb, and the application was dismissed with costs to the defendant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiffs established a prima facie case with a probability of success
  2. 2.Whether damages would be an adequate compensation
  3. 3.Whether an interlocutory injunction should issue restraining the defendant from collecting rental proceeds or dealing with LR 1144/21/XXIV pending trial

Key legal issues

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01

Whether the plaintiffs established a prima facie case

Holding

A prima facie case was demonstrated because the title shows the 18 registered proprietors remain owners and the defendant's claim to ownership lacks evidential support

Reasoning

The court found that the dispute is essentially monetary - control of rental income. The title document, uncontested, shows the 18 persons registered in 1969 remain the registered proprietors. To the extent the defendant insisted on controlling the property and its rental income without any evidence of ownership, the plaintiffs surmounted the first Giella hurdle.

p. 2
02

Whether damages would be an adequate remedy

Holding

Damages would be adequate because the rent is known and ascertainable, and the defendant has not been shown incapable of paying

Reasoning

Applying the second Giella limb as articulated in Nguruman, the court held that the dispute is about control of rental income, which is quantifiable. Speculative or measurable loss is compensable in damages, so the equitable remedy of injunction was unavailable. This failure was dispositive and balance of convenience did not arise.

p. 2

Legal principles established

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  • The Giella conditions are to be applied as separate, distinct and sequential hurdles; failure at one stage means the others need not be considered
  • Where damages are ascertainable and the respondent is capable of paying, no interlocutory injunction should issue

Court orders

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  1. 1.Notice of Motion dated 9th May 2019 dismissed with costs to the defendant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

DO
majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction over the suit transferred from the High Court at Naivasha to the Environment and Land Court

Relief refused

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Interlocutory injunction prohibiting the defendant from collecting rental proceeds from LR 1144/21/XXIV, directing deposit of rents into the registered owners' KCB account, and restraining the defendant from dealing with the suit property pending trial

The plaintiffs failed the second limb of the Giella test because the rent is known, damages are easily ascertainable and would be adequate compensation

p. 2

Costs

Dismissed with costs to the defendant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In view of the foregoing discussion, I find no merit in Notice of Motion dated 9 th May 2019 and dismiss it with costs to the defendant.
p. 2Final orders - dismissal of the application
If prima facie case is not established, then irreparable injury and balance of convenience need no consideration.
p. 2Sequential application of the Giella test
The rent is known and consequently, damages are easily ascertainable and would in the circumstances be an adequate compensation.
p. 2Adequacy of damages where the dispute is over rental income

Issues in the judgment

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minor

The judgment does not state the full names of the plaintiffs or the complete property title details; party names are inferred from context as only 'the plaintiffs' are named collectively

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, "Ndungu Gatigithu & 5 others v Kiambiriria Investment Company Limited [2019] KEELC 76 (KLR)", Case Analysis (2019). Notice of Motion dated 9th May 2019 in ELC suit transferred from the High Court at Naivasha (filed 9th May 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/76/eng@2019-12-19

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