Patrick J. N. Wamae & another v Serah Wanjiku Kariuki [2017] KEELC 1033 (KLR)
The bottom line
#A Kenyan landowner who blocks a neighbour's mapped access road can be ordered by the court to remove the obstruction, even before the full case is heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants established a prima facie case with probability of success
Yes - the Sub-County Surveyor's letter of 18th January 2017 confirmed the existence of a 9-metre access road serving the Applicants' parcels, and the blockage of access infringed their right of access to their property.
The court relied on the surveyor's letter confirming a 9-metre access road on the Registry Index Map serving plots 1450, 1451, 1452 and 1453, which gave credence to the Applicants' claim. While the existence and use of the road required evidence at trial, the current blockage infringed the Applicants' right to access their parcels, satisfying the Mrao test of an apparently infringed right calling for rebuttal.
Whether the Applicants would suffer irreparable loss not compensable by damages
Yes - the anxiety and anguish from being forced to seek alternative access cannot be quantified or compensated by damages.
The Applicants had used the access road since 1993 and before; with the blockage they resorted to unorthodox means and neighbours' goodwill. The court found the resulting anxiety and anguish, and associated loss, could not be quantified or compensated by an award of damages, satisfying the second Giella criterion.
Balance of convenience
The court was not in doubt and did not decide this limb, but held that even if it did, the balance would tilt in favour of maintaining the status quo - allowing the Applicants use of the access road until the suit is determined.
Having satisfied the first two Giella limbs, the court found no doubt requiring resort to the balance of convenience. It nonetheless observed that the status quo meant allowing the Applicants to use the access road pending trial, citing the Wambui Ougo principle on maintaining status quo in serious conflicts of fact.
Legal principles established
#- In an interlocutory application the court does not determine issues with finality but only whether the applicant is entitled to injunction on the usual criteria
- Where there are serious conflicts of fact, the trial court should maintain the status quo until the dispute is decided on trial
Court orders
#- 1.Order of mandatory injunction compelling the Defendant/Respondent to remove any obstruction to the Plaintiffs' right of way to their properties LR.No.Limuru/Ngecha/1450, 1451 and 1453, pending hearing and determination of the application and the suit
- 2.Costs of the application to the Plaintiff/Applicants
- Jurisdiction invoked
- Not expressly stated; the court exercises its equitable discretion to grant injunctive relief in a land dispute (Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick J. N. Wamae & another v Serah Wanjiku Kariuki [2017] KEELC 1033 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1033/eng@2017-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.