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ELCDismissed· [2017] KEELC 1092 (KLR)

Hamisi Ramadhan Chibendo v Hamisi Mwawimo & 2 others [2017] KEELC 1092 (KLR)

Environment and Land Court
20 September 2017
1,396 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Even registered landowners can lose an injunction bid in Kenya if they cannot prove the defendant's land actually touches or overlaps theirs.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of plots Kwale/Ukunda/5194 and 5195, moved the Environment and Land Court at Mombasa by Notice of Motion dated 7th September 2016 seeking an injunction restraining the Defendants from interfering with, trespassing on, cultivating on, constructing on, selling or subdividing his plots, an order directing the Kwale District Surveyor and the Land Registrar Kwale to conduct a boundary survey, eviction of any trespassers, and police enforcement through the OCS Diani. The Defendants, sworn to by Hamisi Salim Mwawimo, denied the claims, asserting registered ownership of Kwale/Ukunda/4889, occupation of their own parcel from time immemorial, and that their land does not share a boundary with the Plaintiff's plots, as shown on an unchallenged survey map. Applying the Giella v Cassman Brown principles, the court found the Plaintiff failed to establish a prima facie case with probability of success, failed to demonstrate irreparable damage, and that the balance of convenience favoured the Defendants in occupation of their own land. The court also declined to order the survey, holding that the District Surveyor and Land Registrar are not parties to the suit and any survey could be by consent or at trial; the authority of Joseph Ndungu v Ruth Anyango relied on by the Plaintiff was distinguished. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Prima facie case and irreparable damage for injunction (Giella v Cassman Brown principles)

Holding

The Plaintiff, though the registered owner of the suit plots, failed to demonstrate a prima facie case against the Defendants, who showed on an unchallenged survey map that their parcel Kwale/Ukunda/4889 does not share a boundary with the Plaintiff's plots; irreparable damage was also not shown.

Reasoning

The court accepted that the Plaintiff is registered owner of Kwale/Ukunda/5194 and 5195, and the Defendants of Kwale/Ukunda/4889. The Defendants deponed and exhibited a survey map showing the parcels are far apart and that they occupy their own land. The Plaintiff did not rebut this evidence. Without a nexus between the parties' parcels, no prima facie case against the Defendants was established, and no irreparable harm was demonstrated.

p. 2
02

Order for survey against non-parties at interlocutory stage

Holding

The prayer directing the Kwale District Surveyor and Land Registrar to conduct a survey was refused because those officials are not parties to the suit, and the application failed to justify a survey order at this preliminary stage; any survey may be by consent or at trial.

Reasoning

The court noted the prayer did not mention the Defendants' plot at all and that the Surveyor and Registrar could be called as witnesses at trial. The authority relied on by the Plaintiff, Joseph Ndungu v Ruth Anyango, was distinguished because it was a concluded matter where no survey order had been requested. The court retained discretion to order a survey by consent or during trial.

p. 3

Legal principles established

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  • A court cannot, at an interlocutory stage, order non-parties such as a District Surveyor and Land Registrar to conduct a survey; such an order may be made by consent of the parties or at trial.

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 7th September 2016 is dismissed
  2. 2.Costs of the application awarded to the Respondents (Defendants)

Authorities

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Cases cited (2)

  • Giella - v - Cassman Brown
  • Joseph Ndungu – v – Ruth Anyango
    (2016) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a land dispute concerning plots in Kwale (specific statutory provision not 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, "Hamisi Ramadhan Chibendo v Hamisi Mwawimo & 2 others [2017] KEELC 1092 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1092/eng@2017-09-20

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