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ELCDismissedNotice of motion dated 23rd September 2015 (Kisumu Environment and Land Court)· [2016] KEELC 955 (KLR)

Fredrick Juma Osuru v Ward Administrator Nyalenda “B” Ward & 2 others [2016] KEELC 955 (KLR)

Environment and Land Court
27 April 2016
906 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kisumu Environment and Land Court refused to stop a public road project, finding the landowner failed to prove encroachment or irreparable loss.

What this practically means

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Executive summary

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The Applicant, Fredrick Juma Osuru, moved the Environment and Land Court at Kisumu by notice of motion dated 23rd September 2015 seeking a temporary injunction to restrain the Ward Administrator Nyalenda B, the County Government of Kisumu and Odume General Construction Supplies Limited from constructing a road on land parcel Kisumu/Pandpieri/1086 pending the hearing and determination of the suit. The 1st and 2nd Respondents opposed through the replying affidavit of Valentine Oiro, the City Surveyor, and the 3rd Respondent through the affidavit of Michael Odumbe Akeyo. The sole issue framed was whether the Applicant had established a prima facie case with a probability of success for interlocutory injunctive relief. The court found the Applicant to be the registered proprietor of the parcel since 1987, but noted the surveyor's report indicating no encroachment and the Respondents' denial of placing markings. It held the Applicant had failed to establish a prima facie case or irreparable loss, and that the balance of convenience favoured continuation of the public road project, any loss being assessable in damages. The application was dismissed with costs. Acting on its own motion, the court directed the County Land Registrar Kisumu to confirm the boundary between the parcel and the public road and file a report within sixty days, with the Applicant to pay the requisite fee, and directed the parties to maintain the status quo ordered on 8th October 2015 for the same period, after which it lapses automatically unless otherwise directed.

Key legal issues

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01

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

Holding

The Applicant, though a registered proprietor since 1987, failed to establish a prima facie case because the Respondents disputed placing markings on his land and the surveyor's report indicated no encroachment

Reasoning

The Applicant was the registered proprietor of Kisumu/Pandpieri/1086 as shown by title and search documents. However, the City Surveyor's report indicated the land had not encroached onto the road, and Respondents denied placing markings. The 1st and 2nd Respondents should have involved the Applicant and Land Registrar in boundary determination but did not. On balance, the prima facie case threshold was not met.

p. 2
02

Whether the Applicant would suffer irreparable loss not compensable by damages

Holding

No irreparable loss demonstrated; any loss is assessable and compensable

Reasoning

The court found that any loss the Applicant might suffer from the road construction could be quantified. Given the great public interest in completion of the road project within a specified time, damages were held to be an adequate remedy, consistent with this court's earlier decision in Ragot v China Overseas Engineering Company Limited.

p. 2
03

Where the balance of convenience lies

Holding

Balance of convenience favours allowing the public road project to continue while the Applicant's interests are protected

Reasoning

The road project carries great public interest and the 3rd Respondent is expected to complete it within a specified time. Delaying construction through an injunction would prejudice the public. The court therefore tilted the balance of convenience towards continuation of the project, coupled with a boundary-confirmation exercise to protect the Applicant's interest.

p. 2

Legal principles established

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  • Where an applicant seeks to restrain a public infrastructure project, damages being capable of assessment and the balance of convenience favouring the project, an interlocutory injunction will be refused under the Giella principles
  • A party undertaking construction near a boundary should involve the adjoining owner and the Land Registrar in determining the boundary

Court orders

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  1. 1.The application dated 23rd September 2015 is dismissed with costs
  2. 2.The County Land Registrar Kisumu to confirm the boundary position between land parcel Kisumu/Pandpieri/1086 and the public road and file a report in court within sixty (60) days indicating the extent of encroachment, if any
  3. 3.The Applicant to pay the requisite fee in relation to the boundary confirmation exercise
  4. 4.The parties to maintain the status quo as ordered on 8th October 2015 for sixty (60) days from the date of the ruling, after which the status quo order lapses automatically unless otherwise directed

Authorities

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Cases cited (2)

  • Jude Thadeus Ragot v China Overseas Engineering Company Limited & Another
    Kisumu E.L.C. Case No. 301 of 2014
  • Giella v Cassman Brown Co. Ltd
    (1973) E.A. 358
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over land disputes relating to Kisumu/Pandpieri/1086

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, "Fredrick Juma Osuru v Ward Administrator Nyalenda “B” Ward & 2 others [2016] KEELC 955 (KLR)", Case Analysis (2016). Notice of motion dated 23rd September 2015 (Kisumu Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/955/eng@2016-04-27

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