Joyce Akinyi Odhaimbo v Gideon Kathiani Kasuki [2017] KEELC 2210 (KLR)
The bottom line
#A landowner in Mombasa failed to stop her neighbour from using disputed land because courts require strong proof of ownership before granting injunctions in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case with probability of success
Not established - the Plaintiff's claim is highly contested; the parties claim different plots (1219 vs 1276) and it is unclear whether they are the same parcel
The Plaintiff exhibited a title for parcel 1219 (0.0077 ha) while the Defendant exhibited documents showing purchase of plot 1276 (0.02 ha) from the original allottee in 2011. The court found it unclear whether the two plots are the same parcel on the ground, that the Defendant has been in occupation for several years, and that there was a prior dispute between the Plaintiff and the original allottee. An injunction at this stage would effectively amount to an un-pleaded mandatory injunction, which had not been proved.
Irreparable harm
Not demonstrated - any loss is compensable by damages
The Plaintiff did not show what loss she would suffer if the injunction was withheld, nor that such loss could not be compensated in damages. The value of the suit property could be determined at the conclusion of the case, so damages would be an adequate remedy if she succeeded at trial.
Balance of convenience
Tilts in favour of the Defendant, who has been in possession for some time
The Defendant has been in occupation since acquiring the plot by sale in 2011, and even the original allottee was in occupation before him. Granting the injunction would result in his eviction, an outcome in the nature of a mandatory injunction which the Plaintiff neither sought nor proved. The balance of convenience therefore favours maintaining the Defendant's possession pending trial.
Legal principles established
#- A prima facie case is one in which, on the material presented, a court properly directing itself concludes that a right has apparently been infringed so as to call for an explanation from the opposite party
- A mandatory injunction can only issue in very clear and special circumstances
Court orders
#- 1.The Plaintiff's notice of motion application dated 3rd November 2016 is dismissed
- 2.Costs of the application awarded to the Defendant
- Jurisdiction invoked
- Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules; Sections 1A, 1B, 3, 3A and 63(c) and (e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joyce Akinyi Odhaimbo v Gideon Kathiani Kasuki [2017] KEELC 2210 (KLR)", Case Analysis (2017). Notice of Motion dated 3rd November 2016 (suit over MOMBASA/ZIWA LA NGOMBE SCHEME/1219). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2210/eng@2017-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.