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ELCAllowedNot stated in the judgment as provided· [2016] KEELC 1290 (KLR)

Stephen Abu Mukhobi v Daniel Oria Odhiambo & another [2016] KEELC 1290 (KLR)

Environment and Land Court
28 October 2016
MGMARY M. GITUMBI
1,553 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, Stephen Abu Mukhobi, moved the Environment and Land Court at Nairobi by Notice of Motion dated 17th July 2015 seeking a temporary injunction to restrain the Defendants from trespassing on, entering, encroaching, building on, developing or interfering with Dandora IV Shops Plot No. 46822 in Nairobi pending the hearing of the suit. He averred that he was allocated the plot on 8th September 1993 by the then Nairobi City Commission, entered into a lease with the then City Council of Nairobi, paid the requisite premium and ground rent, and had approved development plans. In early 2014 he discovered workers digging foundation trenches on the property on behalf of the 1st Defendant, who claimed to have been allocated it. The 1st Defendant, Daniel Oria Odhiambo, in his Replying Affidavit denied owning the property, denied any communication with the Plaintiff, and disclaimed any intention to deprive him of it. Applying the settled Giella v Cassman Brown conditions and the definition of a prima facie case in Mrao v First American Bank, the court found the Plaintiff had demonstrated registered ownership through his allotment letter, payment receipts and lease, unchallenged by the Defendants, establishing a prima facie case with high chances of success. The permanent nature of the structures being erected meant the injury would not be adequately compensated by damages, and the balance of convenience favoured the Plaintiff, especially given the Defendants' disavowal of interest. All three conditions having been satisfied, the application was allowed with costs to the Plaintiff, on 28th October 2016.

Key legal issues

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01

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

Holding

Yes - the Plaintiff produced an allotment letter, payment receipts and a lease agreement showing he is the duly registered owner, unchallenged by the Defendants.

Reasoning

The Plaintiff annexed a letter of allotment dated 8th September 1993, receipts for the payment of Kshs. 14,400/- comprising stand premium and ground rent, and a lease agreement with the then City Council of Nairobi. The 1st Defendant did not challenge ownership and disavowed any claim to or dealings with the property. The court therefore found a genuine and arguable case warranting an explanation or rebuttal.

p. 2
02

Whether the Plaintiff would suffer irreparable injury not compensable in damages

Holding

Yes - the structures being put up are permanent in nature.

Reasoning

The alleged injury is ongoing construction on the suit property. The court accepted that permanent structures being erected could not adequately be compensated by an award of damages, applying the principle that interlocutory injunctions protect plaintiffs against injury for which damages are an inadequate remedy.

p. 3
03

Where the balance of convenience lies

Holding

In favour of the Plaintiff.

Reasoning

The Plaintiff had demonstrated ownership and irreparable harm, while the Defendants had intimated they were not interested in the suit property and did not know the Plaintiff. Given that stance, the balance of convenience favoured restraining the Defendants pending trial.

p. 3

Legal principles established

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  • Conditions for grant of an interlocutory injunction: prima facie case with probability of success; irreparable injury not adequately compensable in damages; balance of convenience where the court is in doubt.
  • Definition of a prima facie case in a civil application.
  • Where damages would be an adequate remedy, no interlocutory injunction should normally be granted.

Court orders

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  1. 1.The Notice of Motion dated 17th July 2015 is allowed - the Defendants are restrained from trespassing on, entering, encroaching, building, developing or in any way interfering with the suit property pending the hearing and determination of the suit
  2. 2.Costs of the application awarded to the Plaintiff

Authorities

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Cases cited (6)

  • GIELLA versus CASSMAN BROWN (1973) EA 358
    (1973) EA 358
  • MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS (2003) KLR 125
    (2003) KLR 125
  • Alternative Media Limited vs. Safaricom Limited (2004) eKLR
    (2004) eKLR
  • Mureithi vs City Council of Nairobi (1979) LLR 12
    (1979) LLR 12
  • American Cynamid Co. vs Ethicon (1975) 1 ALLER 504
    (1975) 1 ALLER 504
  • Nguruman Ltd versus Jan Bonde Nielsen (2014) eKLR
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property (not expressly cited 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, "Stephen Abu Mukhobi v Daniel Oria Odhiambo & another [2016] KEELC 1290 (KLR)", Case Analysis (2016). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1290/eng@2016-10-28

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