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ELCDismissedNot stated in judgment· [2016] KEELC 516 (KLR)

Everline Nangila Wekesa v Martin Bukamu & another [2016] KEELC 516 (KLR)

Environment and Land Court (High Court of Kenya)
13 September 2016
EOE. OBAGA
899 words in judgment
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The bottom line

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A Kenyan landowner with a title deed still lost an injunction because she couldn't show her neighbours were actually on her land.

What this practically means

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Executive summary

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The applicant, registered owner of LR No. Kwanza/Kwanza Block 7/Tonyoto/190 measuring 0.1214 hectares, sought a temporary injunction restraining her neighbours, the first and second respondents, from trespassing on the suitland pending the hearing and determination of her suit. She bought the land in 1994, took possession, but moved out in 1997 after robbers killed her daughter; she alleged that during her absence the respondents encroached, constructed houses and lived on the land. The respondents, who purchased their adjacent parcels in 1987 and 1989 from Musa Ludenyo Mulusa and have been in possession since, opposed the application, contending that a surveyor's error caused the applicant's title to cover their plots and that the dispute required an amendment to the map rather than eviction. Applying the Giella v Cessman Brown test, E. Obaga J found that the applicant had not demonstrated a prima facie case with probability of success: she did not clarify whether her claim was a boundary dispute or a claim for land, could not say when the encroachment occurred, and the location of her half-acre plot could only be ascertained with a surveyor. The court held that a temporary injunction preserves property, not a means of dispossessing a party in possession, that any injury was compensable in damages, and that the balance of convenience favoured the respondents in possession. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the applicant established a prima facie case with probability of success

Holding

She did not; she did not clarify whether her claim was a boundary dispute or a claim for land, and the location of her half acre could only be determined with involvement of a surveyor

Reasoning

Although the applicant held title, the court found her pleadings unclear as to the nature of the claim. The respondents bought their portions earlier, settled and built on them, and the applicant could not say when the alleged encroachment occurred. Determining the location of her plot required surveyor input, which could not be done at the interlocutory stage.

p. 2
02

Whether damages would be an adequate remedy and where the balance of convenience lay

Holding

No irreparable injury was shown and the balance of convenience favoured the respondents, who were in possession

Reasoning

The court reasoned that if the applicant's claims proved true at trial, she could be compensated in damages since the respondents were the ones in possession of the disputed land and there was no threat of sale. Granting the injunction would effectively evict the respondents in possession and pre-determine the suit.

p. 2

Legal principles established

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  • The Giella test applies: prima facie case with probability of success, irreparable injury not compensable in damages, and if in doubt, balance of convenience
  • A temporary injunction preserves property pending trial and is not a vehicle to dispossess a party in possession

Court orders

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  1. 1.The applicant's application for a temporary injunction is dismissed with costs to the respondents

Authorities

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Cases cited (1)

  • Giella –vs- Cessman Brown Co. Ltd
    [1973] EA 358
Jurisdiction invoked
Original civil jurisdiction over land matters; not stated by reference to a specific article in the judgment

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, "Everline Nangila Wekesa v Martin Bukamu & another [2016] KEELC 516 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/516/eng@2016-09-13

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