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ELCOther· [2017] KEELC 2185 (KLR)

Kahindi Kahaso Kombo v Joseph Daniel Kenga (Land Case 349 of 2016) [2017] KEELC 2185 (KLR)

Environment and Land Court
27 July 2017
JOJ.O. Olola
909 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 certificate still lost his injunction because he couldn't prove where his boundaries actually were.

What this practically means

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Executive summary

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The Plaintiff, Kahindi Kahaso Kombe, moved the court by Notice of Motion dated 19 December 2016 seeking an interlocutory injunction restraining the Defendant, Joseph Daniel Kenga, from entering, cultivating, harvesting or otherwise interfering with his parcel, Ngomeni Squatters Settlement Scheme/2161. The Plaintiff averred he was the first registered owner, having obtained title in June 2016, and that on 5 October 2016 the Defendant armed himself with a matchet and threatened his workers, forcing them to abandon fencing the property. The Defendant opposed, asserting he settled in the area in 1976 and was beneficial owner of an adjoining 5.76-hectare parcel; he denied encroaching or threatening violence, contending instead that the Plaintiff had encroached on his land, and urged that the dispute was a boundary dispute determinable by the Land Registrar under Section 19(2) of the Land Registration Act, 2012. The Plaintiff, in a supplementary affidavit, denied it was a mere boundary dispute, asserting the parcels were separated by a road of access to the Indian Ocean. Applying the Nguruman principles for interlocutory injunctions, the court found that although the Plaintiff was registered owner, no evidence of the parcel's co-ordinates or boundaries was presented, and the question of encroachment could only be resolved upon a survey of the two properties. Exercising the balance of convenience, the court ordered maintenance of the status quo prevailing as at the date of the ruling until the suit was heard and determined, and directed each party to bear their own costs.

Key legal issues

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01

Whether an interlocutory injunction should issue to restrain the Defendant from interfering with the suit property

Holding

The court declined to grant the injunction sought and instead maintained the status quo pending determination of the suit

Reasoning

Although the Plaintiff produced a search showing he was registered owner of the parcel, no evidence of the co-ordinates or boundaries of the land was placed before the court. Whether the Defendant encroached could only be ascertained by a survey of the two adjacent properties. In those circumstances the balance of convenience favoured preserving the existing position until trial.

p. 2
02

Whether the dispute is a boundary dispute for the Land Registrar under Section 19(2) of the Land Registration Act

Holding

The court noted the parties' long-standing dispute over the location of the boundary and the Defendant's contention that it should be determined by the Land Registrar, but did not finally determine that question at the interlocutory stage

Reasoning

The pleadings showed a long-standing dispute as to where the border of the adjacent parcels lies. The Defendant maintained it was a boundary dispute for the Land Registrar under Section 19(2) of the Land Registration Act, while the Plaintiff, in a supplementary affidavit, denied this and asserted the parcels were separated by a road of access to the Indian Ocean. The court resolved the application on the balance of convenience rather than on this jurisdictional question.

p. 2

Legal principles established

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  • An applicant for an interlocutory injunction must establish a prima facie case, demonstrate irreparable injury, and show that the balance of convenience is in his favour

Court orders

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  1. 1.That the status quo prevailing as at the date of the order be maintained until the suit is heard and determined
  2. 2.That each party shall bear their own costs

Authorities

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Legislation

  • Land Registration ActSection 19(2)

Cases cited (1)

  • Nguruman Limited –vs- Jan Bonde Nielsen & 2 Others
    CA No 77 of 2012
Jurisdiction invoked
Not expressly stated; the court exercises original civil jurisdiction over a land dispute

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, "Kahindi Kahaso Kombo v Joseph Daniel Kenga (Land Case 349 of 2016) [2017] KEELC 2185 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2185/eng@2017-07-27

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