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ELCDismissedNotice of Motion dated 17th July 2017· [2017] KEELC 1106 (KLR)

Mwasi Musyoka v Mwenga Munuve [2017] KEELC 1106 (KLR)

Environment and Land Court
2 November 2017
ECE.C. Cherono
624 words in judgment
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The bottom line

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The Kitui Environment and Land Court dismissed a landowner's request to stop his neighbour from fencing and sub-dividing disputed land because he couldn't prove a strong case.

What this practically means

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Executive summary

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The applicant moved the Environment and Land Court by Notice of Motion dated 17th July 2017 seeking temporary and permanent injunctions restraining the respondent from trespassing on, fencing, sub-dividing or claiming ownership of four unsurveyed parcels of land at Kyethani, Kyunyu/Kyungu, Hivanguu and Kwamulungu in Nzanzeni location, Tseikuru District, Kitui County. The applicant asserted he inherited two parcels from his late father Musyoka Munuve, who died in 1993, and bought a third parcel from the respondent for Ksh.11,000 around 1994, on which he built a permanent home. The respondent, in a replying affidavit, denied these averments, claimed ownership of three of the parcels on the basis that the Anzauni clan had sub-divided the unsurveyed land to them, and alleged that the applicant had himself sold portions to known and unknown persons. The court, applying the three-pronged test in Giella (spelled 'Grella') v Cassman Brown, found that the applicant had not demonstrated a prima facie case with high chances of success at the main hearing, nor that damages would be an inadequate remedy, and the balance of convenience did not favour him. The application was dismissed with costs to be in the cause.

Key legal issues

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01

Whether a temporary and permanent injunction should issue to restrain trespass, fencing and sub-division of unsurveyed parcels of land in dispute

Holding

The application was dismissed because the applicant failed to demonstrate a prima facie case with high chances of success and failed to show that damages would be an inadequate remedy

Reasoning

The court applied the well-settled three-pronged test in Giella v Cassman Brown. The applicant, who claimed to have inherited two unsurveyed parcels from his late father and purchased a third from the respondent, could not demonstrate a prima facie case with high chances of success at the main hearing. He also did not show that damages would not be an adequate remedy. The balance of convenience test, being the final fallback, did not assist him, and the application was disallowed.

p. 2

Legal principles established

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  • Before granting an equitable relief of injunction the court must satisfy itself that the applicant has established the three Giella v Cassman Brown principles: prima facie case with high chances of success, inadequacy of damages, and balance of convenience where the court is in doubt

Court orders

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  1. 1.The application dated 17th July 2017 is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 3 and 3A
  • Civil Procedure RulesOrder 40 Rule 1 (a) and (b)

Cases cited (1)

  • Grella –vs- Cassman Brown Limited
    (1973)
Jurisdiction invoked
Order 40 Rule 1(a) and (b) and Sections 3 and 3A of the Civil Procedure Act

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, "Mwasi Musyoka v Mwenga Munuve [2017] KEELC 1106 (KLR)", Case Analysis (2017). Notice of Motion dated 17th July 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1106/eng@2017-11-02

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