Kenya Railways Corporation v 1. Anne Wambui Gatheru & 1 other
The bottom line
#The Court of Appeal ruled you cannot get an injunction against someone who hasn't actually interfered with your property — you must prove each restrained party's role.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for temporary injunction
An injunction may only issue where the conditions precedent in Giella v Cassman Brown are met against the party to be restrained; the respondents failed to establish a prima facie case against the appellant
The trial judge's own ruling recorded that the appellant denied being principal of the 2nd defendant and that the plaintiffs' allegations were uncontroverted, and that ownership and boundaries were matters for full trial. If allegations were uncontroverted and title unresolved, no prima facie case with probability of success existed against the appellant, making the injunction against it unsustainable.
Nexus between appellant and the alleged trespass
No nexus was established between the appellant and the 2nd defendant, so the injunction could not stand against the appellant
The respondents' own counsel attributed the trespass to the 2nd defendant (the contractor), while the appellant denied trespass and denied agency over the contractor. The uncontroverted replying affidavit showed discrepancies between title acreages and the Registry Index Map and that the contractor had abandoned the road. Without an agency nexus, no injunctive relief could lie against the appellant.
Effect of compulsory acquisition on the trespass claim
The trespass claim had been overtaken by the gazetted compulsory acquisition process, rendering the injunction futile
Counsel for the respondents conceded that although no notice of compulsory acquisition had been issued when the suit was filed, the Government thereafter gazetted the intended compulsory acquisition and the process was ongoing. The Court treated this as overtaking the trespass claim and as an independent ground for setting aside the injunction against the appellant.
Legal principles established
#- A temporary injunction cannot issue against a party who has not been shown to have infringed the applicant's rights; an applicant must establish a prima facie case against each party restrained
- Where ownership and boundaries of suit land are in dispute and cannot be ascertained on the documents, no prima facie case with likelihood of success is established for injunction purposes
Court orders
#- 1.The orders of the trial court of 19th February 2018 against the appellant are set aside
- 2.Costs of the appeal to the appellant
- 3.The 2nd defendant, not having taken part in the appeal, is not entitled to any costs
- On appeal from
- Environment and Land Court at Kajiado
- Kajiado ELC Case No. 929 of 2017
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act over an appeal from the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Railways Corporation v 1. Anne Wambui Gatheru & 1 other", Case Analysis (2019). Civil Appeal No. 97 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/750/eng@2019-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.