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ELCPartially AllowedNot stated in the judgment text provided· [2017] KEELC 178 (KLR)

Skyman Freighters Limited v Samuel Macharia Gitau & another [2017] KEELC 178 (KLR)

Environment and Land Court
12 October 2017
LKL. Komingoi
1,010 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court blocked defendants from building on or occupying a company's Mombasa land because it held a valid title and the defendants produced no documents.

What this practically means

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Executive summary

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The court ruled on a Notice of Motion dated 4th January 2017 by the plaintiff company seeking a temporary injunction restraining the defendants from trespassing on, encroaching on, constructing on, alienating or otherwise interfering with land held under Title Number CR 63036, sub-division number 20823 (Original Number 14162/14165) Section I Mainland North, Mombasa, pending hearing of the suit. The plaintiff, which purchased the land from Teleposta Pension Scheme Trustees on 23rd March 2012, supported the application with an affidavit of its director, Nicholas Wanjala Wangamati, annexing the certificate of title, official search, map, sale agreement and photographs of recently built semi-permanent structures. The application was opposed by a replying affidavit of the 1st defendant, Samuel Macharia Gitau, who claimed the land was originally Plot Number 188/1/Mainland North Bombululu occupied by about two hundred squatters, but produced no documents. The court framed four issues: ownership, trespass, satisfaction of the injunction conditions, and costs. Applying the Giella v Cassman Brown principles, the court found the plaintiff had demonstrated a prima facie case with a probability of success and would suffer irreparable harm given the invasion and structures, requiring preservation of the land pending trial. The court issued the temporary injunction sought, with costs of the application to abide the outcome of the main suit.

Key legal issues

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01

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

Holding

Yes - the applicant annexed title documents showing it is the legal and registered owner of the suit land.

Reasoning

The plaintiff annexed the certificate of title, official search, map and sale agreement evidencing purchase from Teleposta Pension Scheme Trustees. The respondents produced no documents supporting any claim to the land, and their assertion of long occupation did not displace the documented title.

p. 2
02

Whether the respondents trespassed and whether irreparable harm would follow absent an injunction

Holding

Yes - recent structures on the land indicate trespass; preservation pending trial was necessary.

Reasoning

Photographs showed recently constructed semi-permanent houses on the suit land, suggesting the respondents had invaded it. The court held the plaintiff would suffer irreparably given the invasion and construction, and the land needed preservation pending hearing; respondents would have an opportunity to rebut at the hearing.

p. 2

Legal principles established

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  • The Giella v Cassman Brown principles govern the grant of temporary injunctions: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt.

Court orders

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  1. 1.A temporary injunction restraining the Defendants, their agents, servants or workmen from trespassing, encroaching, alienating, carrying on construction works, wasting, damaging, parting with possession of or otherwise interfering with the plaintiff's property comprised in Title Number CR 63036, sub-division number 20823 (Original Number 14162/14165) Section I Mainland North, Mombasa, pending the hearing and determination of the suit.
  2. 2.Costs of the application to abide the outcome of the main suit.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 63(e)
  • Civil Procedure RulesOrder 51 Rule 1; Order 40 Rules 1, 2, 3 & 4

Cases cited (1)

  • Giella –versus- Cassman Brown & Co. Limited
    (1973) EA 358
Jurisdiction invoked
Sections 1A, 1B, 3 and 63(e) of the Civil Procedure Act; Order 51 Rule 1 and Order 40 Rules 1, 2, 3 & 4 of the Civil Procedure Rules

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, "Skyman Freighters Limited v Samuel Macharia Gitau & another [2017] KEELC 178 (KLR)", Case Analysis (2017). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/178/eng@2017-10-12

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