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ELCDismissedNotice of Motion dated 3rd November 2016 (suit over MOMBASA/ZIWA LA NGOMBE SCHEME/1219)· [2017] KEELC 2210 (KLR)

Joyce Akinyi Odhaimbo v Gideon Kathiani Kasuki [2017] KEELC 2210 (KLR)

Environment and Land Court
26 July 2017
1,680 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff, by a Notice of Motion dated 3rd November 2016 under Order 40 of the Civil Procedure Rules and Sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act, sought a temporary injunction restraining the Defendant from entering, occupying, constructing on, selling, transferring, leasing or mortgaging land parcel MOMBASA/ZIWA LA NGOMBE SCHEME/1219 pending trial. Through her attorney, she averred that she was offered the plot in a 2013 letter of offer following re-survey of the Ziwa La Ngombe Settlement Scheme, paid the purchase price, was registered in October 2013 and enjoyed quiet possession until the Defendant forcefully entered and erected buildings. The Defendant opposed, deposing that he purchased plot No.1276 in the same scheme in 2011 from Eunice Sela Kulumba, the original allottee, who confirmed her ownership and prior disputes with the Plaintiff's attorney over the records. Applying the Giella v Cassman Brown conditions, the court held the Plaintiff had not established a prima facie case, as the parties claimed different plots and it was unclear whether they were the same parcel; that any loss would be compensable by damages; and that the balance of convenience favoured the Defendant, long in possession. The court also noted that granting the orders would amount to an unpleaded mandatory injunction. The application was dismissed with costs to the Defendant.

Key legal issues

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01

Prima facie case with probability of success

Holding

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

Reasoning

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.

p. 3
02

Irreparable harm

Holding

Not demonstrated - any loss is compensable by damages

Reasoning

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.

p. 4
03

Balance of convenience

Holding

Tilts in favour of the Defendant, who has been in possession for some time

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Plaintiff's notice of motion application dated 3rd November 2016 is dismissed
  2. 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

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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, "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.