Kenyatta University Staff Retirement Benefits Scheme v Athi Water Services Board & 3 others [2017] KEELC 1359 (KLR)
The bottom line
#Kenya's land court refused to stop a completed public water project on NSSF land, ruling that money compensation—not an injunction—is the proper remedy.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case
Not established; the Applicant permitted the 1st Defendant's entry in 2014, and the project is complete, so an injunction cannot issue
The Applicant alleged trespass and sought to restrain the 1st Defendant, but the Respondent deposed that entry occurred in 2014 with the Applicant's knowledge and that the water project is complete with a certificate issued. An injunction addresses threatened events, not completed ones. Having allowed entry, the Applicant cannot turn around and seek to restrain the very act it permitted.
Irreparable loss
Any loss is quantifiable as compensation and thus adequately compensable in damages
The Applicant's grievance is non-payment of compensation for land taken for a public water project. The land can be valued and the quantum of compensation determined through evidence and cross-examination at trial. Where damages are an adequate remedy and the Defendant can pay them, an injunction should not issue under the Giella principles.
Balance of convenience and public interest
Balance tilts in favour of the 1st Defendant because the water project serves a public purpose
The 1st Defendant is implementing a water project of public benefit. Granting an injunction would interfere with a public interest project of national importance. Following Edith Wangari Gitati v Athi Water Services Board, public interest prevails over private interest, so the discretionary injunctive relief was refused.
Compulsory acquisition and just compensation
Land compulsorily acquired for public purpose attracts prompt just compensation under Section 111 of the Land Act and Article 40(3)
Compulsory acquisition is governed by Sections 107-111 of the Land Act 2012, and Article 40(3) of the Constitution forbids deprivation of property without prompt payment of just compensation and a right of access to court. The only dispute is the quantum of compensation, resolvable at trial.
Legal principles established
#- An injunction cannot issue where the threatened action has already occurred
- No injunction should be granted where damages are an adequate remedy
- Public interest prudence prevails over private or individual interest
Court orders
#- 1.The Notice of Motion application dated 2nd May 2017 is dismissed entirely with costs being in the cause
- 2.Leave to appeal granted
- 3.Parties to file pleadings and set the matter down for pre-trial directions before the Deputy Registrar within 45 days
- Jurisdiction invoked
- Inherent powers under Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenyatta University Staff Retirement Benefits Scheme v Athi Water Services Board & 3 others [2017] KEELC 1359 (KLR)", Case Analysis (2017). Notice of Motion dated 2nd May 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1359/eng@2017-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.