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ELCDismissedNot stated in the judgment· [2017] KEELC 1107 (KLR)

Musembi Makau v Willy Mutunga Long’o & another [2017] KEELC 1107 (KLR)

Environment and Land Court
24 October 2017
ECE.C Cherono
741 words in judgment
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The bottom line

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A Kenyan landowner's bid for an injunction failed because a title deed alone, without survey maps or boundary beacons, could not prove encroachment.

What this practically means

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Executive summary

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The plaintiff, Musembi Makau, registered owner of parcel Migwani/Kyome/111, filed a Notice of Motion under Order 40 of the Civil Procedure Rules alongside his suit, seeking interim injunctions restraining the defendant, registered owner of the adjoining parcel Migwani/Kyome/113, from interfering with his land, plus costs. The application was supported by his affidavit with a title deed, certificate of official search, a land control consent application, a letter from the assistant chief of Idalune Sub-location, and three letters from the District Land Registrar, Mwingi. The respondent, in a replying affidavit sworn on 15th August 2017, denied the claim and explained that sisal plants had been planted by a surveyor in 1984 to mark the boundary, which the applicant had since interfered with; he also recounted a March 2017 meeting where the applicant, accompanied by the surveyor, registrar and police, claimed ownership up to the boundary. The parties disposed of the application by written submissions. Applying the Giella v Cassman Brown principles, the court found the applicant had not established a prima facie case: although surveyor letters summoned the respondent to fix boundary beacons and he failed to honour them, the applicant produced no survey map, beacons or beacons certificate demarcating the two parcels. Holding that the interests of justice required the dispute to proceed to full hearing, where parties could agree on a joint surveyor and prepare reports, the court disallowed the application dated 14th July 2017 with costs to abide the event. Judgment was read and signed in open court on 24th October 2017 by E.C Cherono, ELC Judge.

Key legal issues

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01

Whether the applicant established a prima facie case with a high chance of success

Holding

He did not. Despite holding a title deed to Migwani/Kyome/111, the applicant produced no survey map, beacons or beacons certificate demarcating the boundary with Migwani/Kyome/113, and the respondent failed to honour the Land Registrar's summons to fix beacons.

Reasoning

The court examined letters from the District Surveyor dated 11th August 2016, 14th September 2016 and 14th February 2017 summoning the respondent to fix boundary beacons, which the respondent did not honour. Without a survey map or beacons certificate, the court could not confirm the alleged encroachment on the title documents alone, so the Giella threshold was not met.

p. 2
02

Whether damages or the balance of convenience favoured an injunction

Holding

The court did not reach the second and third Giella limbs, instead directing the dispute to full hearing where joint or separate surveyor reports could be prepared.

Reasoning

Because the factual foundation of the claim - the true boundary between the two adjacent parcels - could only be established through a survey, the court held the interests of justice demanded a full trial rather than interim restraint on the evidence filed.

p. 2

Legal principles established

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  • The three Giella v Cassman Brown principles for granting an interlocutory injunction: prima facie case with chances of success, irreparable injury not compensable in damages, and balance of convenience where the court is in doubt
  • Where boundary beacons between neighbouring parcels are in dispute and unverified, the proper course is to allow the matter to proceed to full hearing with surveyor reports rather than grant an injunction

Court orders

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  1. 1.The application dated 14th July 2017 is disallowed with costs to abide the event

Authorities

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Legislation

  • Civil Procedure RulesOrder 40

Cases cited (1)

  • Grella –vs- Cassman Brown Co. Ltd
    (1973) EA
Jurisdiction invoked
Order 40 of the Civil Procedure Rules (interim injunctions); Environment and Land Court original jurisdiction over land parcels

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, "Musembi Makau v Willy Mutunga Long’o & another [2017] KEELC 1107 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1107/eng@2017-10-24

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