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ELCPartially AllowedNotice of Motion dated 7th September 2016 (suit number not stated in judgment)· [2017] KEELC 1938 (KLR)

Furaha Sea Chalets Limited v Hassan Juma & 2 others [2017] KEELC 1938 (KLR)

Environment and Land Court
19 September 2017
JOJ. O. Olola
1,359 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner with a title deed won an order requiring trespassers to vacate within 30 days or face eviction.

What this practically means

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Executive summary

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This was a Notice of Motion dated 7th September 2016 in which the plaintiff, the registered owner of Plot No. 1054 (Original No. 712/21) measuring approximately 0.2251 hectares and Plot No. 1052 (Original No. 712/19) measuring approximately 0.1356 hectares at Watamu, sought a temporary injunction restraining the defendants from trespassing on and constructing on the parcels, a temporary mandatory injunction compelling demolition and removal of the structures, and eviction with the assistance of the OCS Watamu. The plaintiff asserted that in August 2016 the defendants occupied the land without colour of right and were erecting permanent and semi-permanent structures, and that interventions by the local administration had failed. In a replying affidavit sworn by the 3rd defendant, Jafari Ali Shekue, on behalf of his co-defendants, the defendants denied encroachment, asserting they were members of Watamu Youth Future Concern, a registered Community Based Organisation occupying Plot No. 711, which they claimed was under the Kenya Wildlife Service and gazetted as a fish landing depot for the Watamu Fishermen Association; they argued the wrong parties had been sued. The court found it undisputed that the plaintiff held title to the two parcels, but that the defendants had produced nothing capable of conferring a legal entitlement: no official documentation proving the structures were on Plot 711, no gazettement evidence, and no nexus to the Kenya Wildlife Service. Applying Court of Appeal authority, the court held the plaintiff's case met the threshold for an interlocutory mandatory injunction, since a trespasser must give way pending determination of the dispute. The application was allowed: the defendants were ordered to vacate both plots within 30 days, failing which eviction would issue without further application, to be effected with a licensed Court Bailiff, with costs to the plaintiff.

Key legal issues

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01

Whether the defendants had any colour of right to occupy and erect structures on the plaintiff's titled parcels

Holding

The defendants had no colour of right; their registration certificate, survey plan and letter from the District Fisheries Office could not confer any legal entitlement to the land

Reasoning

The plaintiff produced title documents establishing registered ownership of Plots 1054 and 1052. The defendants claimed to occupy Plot 711 as members of a Community Based Organisation and relied on a letter declaring a fish landing site, but produced no official documentation showing the structures were on Plot 711 or that the land was gazetted public land, nor any nexus with the Kenya Wildlife Service or authority to erect permanent structures.

p. 2
02

Whether a temporary mandatory injunction could issue at the interlocutory stage

Holding

Yes; the plaintiff's case passed the test in the cited authorities since the defendants had demonstrated no colour of right

Reasoning

Relying on Kenya Breweries Ltd v Washington Okeyo, Sharrif Abdi Hassan v Nadhif Jama Adan and Jaj Super Power Cash and Carry Ltd v Nairobi City Council, the court held that mandatory injunctions are grantable interlocutorily where the case is clear, the act is simple and remediable, or the defendant is stealing a match. In trespass cases, the trespasser must give way pending determination of the dispute.

p. 3

Legal principles established

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  • A mandatory injunction can be granted on an interlocutory application where the case is clear, the act is simple and easily remediable, or the defendant attempts to steal a match on the plaintiff
  • It is the trespasser who should give way pending determination of the dispute, and compensability in damages is no answer to trespass

Court orders

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  1. 1.The three defendants to vacate the plaintiff's parcels of land being Plot No. 1054 (Original No. 712/21) and Plot No. 1052 (Original No. 712/19) within 30 days from the date of the Ruling
  2. 2.Failing vacatur within 30 days, an order of eviction against the defendants to issue without any further application by the plaintiff, to be effected with the assistance of a licensed Court Bailiff
  3. 3.Plaintiff/Applicant to have the costs of the application

Authorities

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Cases cited (3)

  • Kenya Breweries Ltd –vs- Washington Okeyo
    (2002) EA 109
  • Sharrif Abdi Hassan –vs- Nadhif Jama Adan
    CA 121/2005 (2006) eKLR
  • Jaj Super Power Cash and Carry Ltd –vs- Nairobi City Council & 20 Others
    CA No. 111/2002
Jurisdiction invoked
Inherent jurisdiction of the court to grant interlocutory injunctions (not expressly stated in 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, "Furaha Sea Chalets Limited v Hassan Juma & 2 others [2017] KEELC 1938 (KLR)", Case Analysis (2017). Notice of Motion dated 7th September 2016 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1938/eng@2017-09-19

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