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ELCDismissedNot stated in the excerpt· [2015] KEELC 585 (KLR)

Francis Karumwa Gathekia v Kahindo Kataliko Kamungele & another [2015] KEELC 585 (KLR)

Environment and Land Court
20 March 2015
PNP. Nyamweya
1,379 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to force a neighbour to rebuild a boundary wall because the property owner produced no photos or proof of the damage.

What this practically means

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Executive summary

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This was a ruling by P. Nyamweya J of the Environment and Land Court at Nairobi on an Amended Notice of Motion dated 14th October 2013 in which the Plaintiff, owner of L.R No. 209/11296/193 at Airport View Estate, Nairobi, sought a mandatory interlocutory injunction compelling the Defendants to reconstruct or restore the boundary wall shared with L.R No. 209/11296/192, an alternative order allowing the Plaintiff to restore the wall and recover the cost, and police security during the works. The Plaintiff alleged that the Defendants had extended the boundary wall upwards and built a structure that cracked and tilted the wall dangerously towards his land, causing his tenant to vacate and loss of rental income. The 2nd Defendant opposed in two replying affidavits, stating the property belonged to his father, Kahindo Kataliko Kamulenge, who had relocated to Congo, and that the beautification works were done wholly on the father's property. The court framed the question as whether the Plaintiff had met the threshold for temporary and mandatory injunctions, applying Giella v Cassman Brown, Kenya Breweries v Washington Okeyo and Mrao v First American Bank. It found no photographic or other evidence of the structure or the damage, hence no prima facie case; that service of the 1st Defendant by newspaper advertisement did not comply with Order 5 Rules 21 to 28 on service out of jurisdiction; and that the pending Nairobi City Council demolition proceedings, whose outcome was unevidenced, made the application premature. The prayers were declined, with costs of the motion in the cause.

Key legal issues

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01

Whether the Plaintiff established a prima facie case for a mandatory injunction

Holding

The Plaintiff failed to establish a prima facie case because he produced no photographic or other evidence of the alleged structure or the damage to the boundary wall

Reasoning

The court applied the Giella v Cassman Brown principles and the Mrao definition of a prima facie case. Without any documentary, photographic or other evidence of the structure erected by the Defendants or of the damage to the shared boundary wall, the court had no material on which to conclude that a right had apparently been infringed calling for an explanation or rebuttal. The mandatory injunction therefore could not issue.

p. 3
02

Whether the 1st Defendant was properly served, being out of the jurisdiction

Holding

Service by advertisement in the Daily Nation did not comply with the requirement for leave of the Court and the procedures in Order 5 Rules 21 to 28 of the Civil Procedure Rules

Reasoning

The Plaintiff admitted the registered owner of the neighbouring property was out of the country and effected service only by newspaper advertisement. The court held that service of process on a person outside the jurisdiction requires prior leave of the court and strict adherence to the prescribed procedures. The irregular service was an independent ground for declining the interlocutory relief.

p. 3
03

Whether pending demolition proceedings by the Nairobi City Council rendered the application premature

Holding

The existence of City Council proceedings regarding demolition of the structure, whose outcome was not evidenced, made it premature to decide the application

Reasoning

The court noted that enforcement/demolition proceedings had been brought by the Nairobi City Council against the structure, with an appeal filed against the enforcement notice. Since no evidence was tendered of the outcome of those proceedings, the court considered it premature to grant the mandatory injunction at the interlocutory stage.

p. 3

Legal principles established

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  • The requirements for a temporary injunction are a prima facie case, irreparable loss not compensable by damages, and, if in doubt, the balance of convenience
  • A mandatory injunction at interlocutory stage requires special circumstances over and above a prima facie case, and will only issue in clear cases
  • Service of process on a person out of the jurisdiction requires leave of the Court and compliance with Order 5 Rules 21 to 28 of the Civil Procedure Rules

Court orders

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  1. 1.The prayers in the Plaintiff's Notice of Motion dated 14th October 2013 are declined
  2. 2.Costs of the Notice of Motion shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 Rules 21 to 28

Cases cited (3)

  • Giella vs Cassman Brown & Co Ltd
    (1973) EA 358
  • Kenya Breweries Ltd and Another v Washington Okeyo
    (2002) 1 E.A. 109
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to land in Nairobi; Civil Procedure Rules Order 5 Rules 21 to 28 referenced on service out of jurisdiction

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, "Francis Karumwa Gathekia v Kahindo Kataliko Kamungele & another [2015] KEELC 585 (KLR)", Case Analysis (2015). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/585/eng@2015-03-20

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