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ELCAllowedCase No 115 of 2017· [2017] KEELC 389 (KLR)

Paul Kipkurui Koskei & another (suing for and on behalf of themselves and as the Legal Administrators of the Estate of Kipkoskei Arap Mase (Deceased) v Stephen Sagiruk & 2 others [2017] KEELC 389 (KLR)

Environment and Land Court
15 December 2017
790 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 halted road construction through a family's inherited land because the other side never filed a defence, leaving their documents unchallenged.

What this practically means

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Executive summary

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This is a ruling on the plaintiffs' unopposed Notice of Motion dated 10th March 2017 seeking an interlocutory injunction to restrain the defendants from proceeding with road construction through their homestead on land parcel Nakuru/Olenguruone/Chepakundi/1381. The 1st plaintiff, administrator of the estate of Kipkurui Arap Mase, deposed that the deceased was the registered proprietor of the suit property, which the 2nd plaintiff fully inherited pursuant to a Certificate of Confirmation of Grant dated 26th August 2015. The plaintiffs alleged the defendants influenced construction of a road through the suit property rather than along its boundary, and exhibited an Assistant Chief's letter giving the 2nd plaintiff 60 days to remove houses said to be on the road. The 1st defendant and the Attorney General (for the 3rd defendant) entered appearance but filed no defence or response, leaving the application unopposed. Applying the Giella v Cassman Brown test as clarified in Nguruman Limited v Jan Bonde Nielsen, Justice D. O. Ohungo found the plaintiffs had established a prima facie case with a probability of success on the uncontroverted evidence, and that damages could not adequately compensate them for the loss of their houses and land. The court granted the injunction restraining the respondents, their servants, employees, contractors and agents from proceeding with the road construction through the homestead pending the hearing and determination of the suit, with costs to the plaintiffs.

Key legal issues

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01

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

Holding

Yes. On uncontroverted evidence the court was satisfied the 2nd plaintiff inherited the suit property under a Certificate of Confirmation of Grant and that there was a real threat of demolition of their houses.

Reasoning

The court accepted the Land Certificate and Certificate of Confirmation of Grant showing the 2nd plaintiff inherited the suit property in Nakuru Succession Cause No. 107 of 2015. The defendants entered appearance but filed no defence or response, leaving the evidence uncontroverted, including the Assistant Chief's letter requiring removal of houses said to be on the road.

p. 2
02

Whether damages could adequately compensate the plaintiffs

Holding

No; the court held damages were inadequate given the threatened loss of houses and land, warranting an interim injunction.

Reasoning

Having found a prima facie case, the court moved to the second Giella limb. It reasoned that the threatened demolition of homesteads and interference with ownership of the suit property were not capable of adequate compensation in damages, making an interim injunction the appropriate remedy pending full trial.

p. 2

Legal principles established

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  • In an application for an interlocutory injunction, the applicant must satisfy the Giella test: a prima facie case with probability of success, irreparable harm not compensable by damages, and, if in doubt, balance of convenience.
  • The three Giella conditions are separate, distinct and logical hurdles to be surmounted sequentially; if a prima facie case is not established, the other limbs need no consideration.

Court orders

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  1. 1.An injunction restraining the respondents by themselves, their servants, employees, contractors and or authorized agents from proceeding with the road construction through the applicants homestead on land parcel LR N. Nakuru/Olenguruone/Chepakundi/1381 pending the hearing and determination of this suit
  2. 2.Costs of the application to the plaintiffs

Authorities

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Cases cited (2)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Not stated in the judgment; the court exercises original civil jurisdiction over the land dispute

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, "Paul Kipkurui Koskei & another (suing for and on behalf of themselves and as the Legal Administrators of the Estate of Kipkoskei Arap Mase (Deceased) v Stephen Sagiruk & 2 others [2017] KEELC 389 (KLR)", Case Analysis (2017). Case No 115 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/389/eng@2017-12-15

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