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ELCAllowedNot stated in judgment· [2017] KEELC 749 (KLR)

Nyabola Adel Joshua v Dorcas Muthoni Kaira [2017] KEELC 749 (KLR)

Environment and Land Court
16 November 2017
DOD. O. Ohungo
692 words in judgment
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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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This was an unopposed Notice of Motion dated 19 June 2017 in which the plaintiff, the registered proprietor of L.R No. Njoro/Ngata Block 7/891 (Chumo), sought a temporary injunction pending the hearing and determination of the suit, restraining the defendant from invading, trespassing, grazing, cultivating or otherwise interfering with his quiet possession and use of the property, together with an order directing the Officer Commanding Baraka Police Post to ensure compliance with the court's orders and costs in the cause. The application was brought under Order 40 rules 1, 2, 3 and 9 of the Civil Procedure Rules and supported by the plaintiff's affidavit, exhibiting the title deed and an official search as proof of ownership. He deposed that the defendant trespassed onto the land in May 2017 and began cultivation, and that police had taken no action. The defendant was served but filed no response and did not attend the hearing; the application therefore proceeded unopposed and the plaintiff's evidence was unchallenged. Applying the Giella v Cassman Brown test as clarified in Nguruman Limited v Jan Bonde Nielsen, the court found a prima facie case with a probability of success, holding that damages would not adequately compensate the loss of the land's use and farming opportunity. On 16 November 2017 the court granted the temporary injunction as sought and awarded costs to the plaintiff. The application was therefore allowed.

Key legal issues

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01

Entitlement to a temporary injunction

Holding

A temporary injunction issued restraining the defendant from interfering with the plaintiff's quiet possession and use of the suit property.

Reasoning

The applicant produced a title deed and certificate of official search showing he is the registered proprietor and has occupied and cultivated the land since 2016. The defendant, who was served, filed no response and did not attend, so the evidence was unchallenged. The court found trespass and cultivation by the defendant in May 2017, establishing a prima facie case, and held that damages would not adequately compensate the loss of use and farming opportunity.

p. 2
02

Adequacy of damages

Holding

Damages would not adequately compensate the applicant if deprived of the use of his property.

Reasoning

Applying the second Giella limb, the court reasoned that land of this nature carries a value beyond monetary compensation - the applicant would lose the opportunity to farm it pending trial. With both the first and second limbs satisfied, the balance of convenience limb did not arise for determination.

p. 2

Legal principles established

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  • The three Giella conditions are separate, distinct and logical hurdles to be surmounted sequentially; if a prima facie case is not established, irreparable injury and balance of convenience need no consideration.
  • Where an application is unopposed, the evidence placed before the court is unchallenged.

Court orders

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  1. 1.Pending the hearing and determination of the suit, an injunction restraining the Defendant, her agents and/or servants from invading, trespassing, grazing, cultivating or in any way interfering with the plaintiff's quiet possession and use of L.R No. NJORO/NGATA BLOCK 7/891 (CHUMO)
  2. 2.Costs to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1, 2, 3 and 9

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
Order 40 rules 1, 2, 3 and 9 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, "Nyabola Adel Joshua v Dorcas Muthoni Kaira [2017] KEELC 749 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/749/eng@2017-11-16

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