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ELCDismissedNotice of Motion dated 15th February, 2017 (ELC, Kajiado)· [2017] KEELC 2157 (KLR)

Peter Isaboke Nyareru v Irene Moraa Onsomu [2017] KEELC 2157 (KLR)

Environment and Land Court
20 July 2017
COCHRISTINE OCHIENG
1,410 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landbuyer in Kajiado lost his bid for an injunction because he lacked documents proving his claim, showing courts require evidence, not just allegations.

What this practically means

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Executive summary

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The Plaintiff, Captain (RTD) Peter Isaboke Nyareru, moved the Environment and Land Court at Kajiado by Notice of Motion dated 15th February, 2017, brought under Sections 1A, 1B, 3, 3A and 63(c) of the Civil Procedure Act and Order 40 Rules 2(1) and 4(1) and (2) and Order 51 Rule 1 of the Civil Procedure Rules. He had purchased from the Defendant a quarter hectare carved out of NGONG/NGONG/49574, later subdivided into NGONG/NGONG/63723 and 63724. After taking possession, community members excised a portion allegedly as public utility land, and he sought injunctive orders and an order compelling the Defendant to transfer a portion of her remaining land as compensation, alleging non-disclosure of the public utility status. The Defendant, in a replying affidavit, denied any public utility path on the land, asserted that trespassers including the Plaintiff had interfered with her property, and relied on a Land Registrar Ngong decision in her favour. Counsel filed written submissions; the Plaintiff relied on Giella v Cassman Brown. Framing the sole issue as whether the Plaintiff was entitled to the injunctive orders sought, the court applied the Giella principles and found no prima facie case established, no proof of irreparable damage, and no balance of convenience in the Plaintiff's favour, noting his title was intact and his grievance lay in compensation rather than a caveat on the Defendant's separate title. The court dismissed the motion with costs in the cause. Judgment was delivered by Christine Ochieng, J, on 20th July, 2017 at Kajiado.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with probability of success

Holding

No prima facie case established; the Defendant produced proceedings and a decision of the Land Registrar Ngong indicating there is no public utility path on the suit land

Reasoning

The Plaintiff contended the Defendant failed to disclose a public utility way on the plot. The Defendant denied any encumbrance and produced proceedings and a decision by the Land Registrar Ngong indicating no public utility path exists. The Plaintiff referenced a Machakos ELC case but never furnished the proceedings or judgment, leaving his claim unsupported.

p. 2
02

Whether the Plaintiff would suffer irreparable loss and damage

Holding

No irreparable damage proved

Reasoning

The Plaintiff alleged third parties excised a portion of his land preventing economic use, but he did not produce proof of the extent of the excision. Without evidence quantifying the loss, the court could not find irreparable injury that damages could not compensate.

p. 2
03

Where the balance of convenience lies

Holding

Balance of convenience did not favour the Plaintiff; his title is intact and the issue is one of compensation, not a caveat on the Defendant's separate title

Reasoning

The court reasoned that the Plaintiff's title remains intact and his grievance relates only to the portion allegedly excised as public utility. That is a claim for compensation against the Defendant, not a basis to encumber her separate title, so denying the injunction would not cause him greater inconvenience.

p. 3

Legal principles established

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  • The principles for granting a temporary injunction are: prima facie case with probability of success, irreparable injury not adequately compensable in damages, and balance of convenience if in doubt

Court orders

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  1. 1.Declined to grant the orders sought in the Plaintiff's Notice of Motion dated 15th February, 2017 and filed on 16th February, 2017
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A and 63(c)
  • Civil Procedure RulesOrder 40 Rule 2(1) and 4(1) and (2); Order 51 Rule 1
  • Constitution of KenyaArticle 40

Cases cited (2)

  • Giella Vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Gatecha Nganga Vs. Irene Moraa Onsomu
    Machakos ELC No. 130 of 2012
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(c) of the Civil Procedure Act and Order 40 Rule 2(1) and 4(1) and (2) and Order 51 Rule 1 of the Civil Procedure Rules

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, "Peter Isaboke Nyareru v Irene Moraa Onsomu [2017] KEELC 2157 (KLR)", Case Analysis (2017). Notice of Motion dated 15th February, 2017 (ELC, Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2157/eng@2017-07-20

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