George Nakulo Osallo v Barclays Bank of Kenya & 2 others [2014] KEELC 342 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case for a temporary injunction
No prima facie case was established because the key dispute - the relative ground locations of the two titled parcels - cannot be resolved on the affidavits and titles alone
The Plaintiff relied on his title to Kajiado/Kaputiei North/19734, while the 1st and 2nd Defendants held title to and evidence of registration of Kajiado/Kaputiei North/3587, supported by a surveyors' report placing the Plaintiff's storeyed building on 3587. With competing titles and a purely factual survey dispute, the court could not conclude that a right had apparently been infringed requiring rebuttal.
Whether the balance of convenience favoured the Plaintiff
The balance of convenience tilted in the Plaintiff's favour because he and his family reside on the property, but the status quo was limited to six months pending an expeditious official survey
The court noted the Plaintiff and his family live on the subject property, justifying preservation of the status quo. It also recognised that if the Plaintiff is occupying 3587, the 2nd Defendant would suffer considerable prejudice, so the survey confirmation had to be done expeditiously within a defined period, with the orders lapsing on the Plaintiff's default in facilitating the survey.
Legal principles established
#- The grant of a temporary injunction requires the applicant to establish a prima facie case and irreparable loss not compensable by damages, failing which the court may decide on the balance of convenience
- Where both parties hold registered titles to disputed parcels and the contested issue is the physical location of the land, the court cannot find a prima facie case without an official survey
Court orders
#- 1.Status quo to be maintained by the parties for six (6) months from the date of the ruling: both Plaintiff and 2nd Defendant restrained from selling, transferring, leasing, charging or otherwise alienating or disposing of land parcels Kajiado/Kaputiei North/3587 and/or 19734, and from undertaking any further construction or developments on the said parcels
- 2.The 1st and 2nd Defendants restrained from interfering with the Plaintiff's possession and occupation of the said parcels and from demolishing or interfering with structures constructed thereon by the Plaintiff
- 3.The County Surveyor for Kajiado County to undertake a survey and prepare and file a survey report in Court within 30 days of service, establishing the location and coordinates of the beacons of the two parcels and the structures situated thereon
- 4.The parties to provide the County Surveyor with necessary title/ownership documents and to jointly bear the costs of the survey and report in equal parts
- 5.The Plaintiff to serve a copy of the ruling and orders on the County Surveyor within fourteen days and follow up on the filing of the report; upon default, the status quo orders shall lapse
- 6.Costs of the Plaintiff's Notice of Motion dated 13th December 2011 to be in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Nakulo Osallo v Barclays Bank of Kenya & 2 others [2014] KEELC 342 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/342/eng@2014-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.