Josephat Mwanzia Kasyoka v Peter Muinde Mbiti & 2 others [2013] KEELC 151 (KLR)
The bottom line
#The High Court in Machakos dismissed a landowner's bid to stop construction on a disputed Mlolongo plot because he lacked documents proving he owned it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case for a temporary injunction over plot no. 329
No prima facie case was established; the Plaintiff's claim to plot 329 was unsupported by evidence, his own documents showing temporary allotment of plot 4 and allotment of plot 330
The court found the Plaintiff's own documents showed only a temporary allotment letter for plot 4 Mlolongo Ngwata Phase II C and a 2007 allotment of plot 330. No evidence connected plot 4 or 330 to plot 329, which the Defendants denied belonged to him. Following Mrao Ltd v First American Bank, an apparently infringed right was not demonstrated.
Whether the Plaintiff would suffer irreparable loss not compensable by damages
No; any loss could be compensated by an award of damages, the value of the plot being determinable at trial
The court held the Plaintiff did not demonstrate what loss he would suffer or that such loss could not be compensated in damages. The value of the suit plot could be ascertained at the conclusion of the case, so damages would be an adequate remedy if he succeeded at trial.
Where the balance of convenience lies
The balance of convenience tilts in favour of the 3rd Defendant, who purchased the plot, took possession and made substantial unrebutted investment
The 3rd Defendant demonstrated purchase from the 2nd Defendant, possession, commencement of development and substantial expenditure including a Kshs 6,000,000 loan. That evidence of substantial investment was not rebutted by the Plaintiff, who had made no financial contribution to the property he sought to injunct.
Legal principles established
#- A prima facie case is one in which, on the material presented, the court concludes that there exists a right which has apparently been infringed so as to call for an explanation or rebuttal from the opposite party (Mrao Ltd v First American Bank of Kenya Ltd)
Court orders
#- 1.The Plaintiff's notice of motion application dated 26th July 2012 is dismissed
- 2.Costs to the Defendants
- Jurisdiction invoked
- Order 40 Rules 1(a), 2 and 4 and Order 51 Rule 10 of the Civil Procedure Rules; sections 3 and 63(c) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josephat Mwanzia Kasyoka v Peter Muinde Mbiti & 2 others [2013] KEELC 151 (KLR)", Case Analysis (2013). Machakos HCCC (Notice of Motion dated 26th July 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/151/eng@2013-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.