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ELCPartially AllowedNot stated in the judgment as provided· [2015] KEELC 630 (KLR)

Innocent Elias Muchiri Gitonga v County Government of Nyandarua County & 3 others [2015] KEELC 630 (KLR)

Environment and Land Court
19 February 2015
MSMunyao Sila
615 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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A Nakuru court stopped road widening on disputed land until trial, protecting the owner from irreversible loss while the real question of encroachment is decided.

What this practically means

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Executive summary

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The plaintiff, legal administrator of the estate of the late Naomi Wairimu Gitonga, registered owner of land parcel Nyandarua/Ol Joro Orok Salient/1105, filed this suit by plaint on 10 June 2014. He pleaded that the Government issued notices in 2011 and 2012 of its intention to widen the Bridge Hills Girls-Gatimu Secondary School Road, which would encroach about 0.3 acres of the suit land; he further pleaded a discrepancy between the actual acreage on the ground (about 5.55 acres) and that in the title deed and RIM (6.93 acres). He sought an injunction restraining the widening or encroachment, a declaration that the land is under-size, an order for comprehensive resurveying, and in the alternative compensation at market rates. Together with the plaint he sought an interlocutory injunction. None of the defendants filed papers opposing the application; the State Law Office stated the 2nd to 4th defendants would not oppose, and an adjournment sought for the 1st defendant was refused as a similar one had already been granted. The court declined to make preliminary findings on whether the widening would encroach on the land, deferring that question to trial, but held that the balance of convenience lay in leaving the plaintiff's land un-interfered with until determination of the suit, since any encroachment would cause him loss. The application was accordingly allowed, with costs in the cause.

Key legal issues

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01

Whether an interim injunction should issue to restrain road widening alleged to encroach on the plaintiff's land

Holding

The application was allowed on the ground of balance of convenience, without making preliminary findings on encroachment

Reasoning

The court could not determine from the material before it whether the road widening would encroach on the suit land, and the defendants tabled no material justifying the widening. It held that the encroachment question is a matter for trial. However, if the encroachment occurred, the plaintiff would suffer loss that could not readily be undone, so the balance of convenience favoured leaving his land un-interfered with pending trial.

p. 2
02

Adjournment sought by the 1st defendant's counsel

Holding

Adjournment refused

Reasoning

Counsel for the 1st defendant sought an adjournment on the ground that Mr. Gachiengo was yet to get instructions. The court declined because a similar adjournment had already been granted to Mr. Gachiengo on 20 November 2014 on the same reasons, and the 2nd to 4th defendants stated they did not oppose the application.

p. 2

Legal principles established

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  • At the interlocutory stage, the balance of convenience favours preserving the status quo of land claimed to be under threat of encroachment until trial

Court orders

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  1. 1.The application for injunction is allowed pending the hearing and determination of the suit
  2. 2.Costs in the cause
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (suit by plaint over encroachment on registered land)

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, "Innocent Elias Muchiri Gitonga v County Government of Nyandarua County & 3 others [2015] KEELC 630 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/630/eng@2015-01-19

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