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ELCDismissedNotice of Motion dated 14th June 2016 (main suit number not stated in the judgment)· [2017] KEELC 2419 (KLR)

Katsran Logistic Limited v Airtel Kenya Limited [2017] KEELC 2419 (KLR)

Environment and Land Court
13 July 2017
JOJ. O. Olola
1,134 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 who bought property knowing a telecom tower already stood on a neighbouring leased plot cannot win an urgent injunction to remove it.

What this practically means

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Executive summary

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Katsran Logistic Limited, as Plaintiff, moved the Environment and Land Court at Malindi by a Notice of Motion dated 14th June 2016 seeking a mandatory injunction compelling Airtel Networks Kenya Ltd to remove a telecommunication signal tower allegedly erected on land known as Chambe/Kibabamche/390, an interlocutory injunction restraining trespass pending the main suit, and costs. The application was supported by an affidavit of the Plaintiff's Managing Director, Henry Katambo, who asserted ownership of the parcel and complained of continuous trespass and unlawful erection of the mast despite written and verbal demands. Airtel Networks Kenya Ltd opposed the application through a Replying Affidavit of Gilbert Ng'etich, denying trespass and averring that it leased the adjacent parcel Chembe/Kibabamshe/210 from Justin Kahindi Katana effective 1st March 2009, and that since 2014 its sites had been transferred to another entity, so the equipment no longer belonged to it. Applying the settled Giella v Cassman Brown principles and the Mrao Ltd definition of a prima facie case, the court found that the Defendant had been in occupation under a lease since 2009, that the equipment was in place by March 2014, and that the Plaintiff only obtained its Certificate of Lease on 9th December 2015, when it must have known of the development. No evidence showed the occupied portion risked being wasted, damaged or alienated beyond the Plaintiff's reach. The application was dismissed with costs to the Respondent.

Key legal issues

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01

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

Holding

No prima facie case was established; the equipment is on a different parcel occupied under a 2009 lease, and the Plaintiff acquired title in December 2015

Reasoning

The court applied the Giella principles. The Defendant showed it leased Chembe/Kibabamshe/210 from Justin Kahindi Katana effective 1st March 2009 and annexed the agreement and title. The Plaintiff's Certificate of Lease for Chambe/Kibabamche/390 issued on 9th December 2015, after the tower was in place and transferred to a successor entity in 2014. The Plaintiff must have been aware of the development on acquisition.

p. 3
02

Whether the Plaintiff would suffer irreparable injury not compensable by damages

Holding

No irreparable injury was demonstrated; the occupied portion was not shown to be at risk of being wasted, damaged or alienated

Reasoning

The court found no evidence that the portion occupied by the Defendant was in danger of being wasted, damaged or wrongfully alienated so as to be beyond the Plaintiff's reach at the conclusion of the main suit. Damages would therefore adequately compensate, and the second Giella limb was not satisfied.

p. 3

Legal principles established

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  • A prima facie case is more than an arguable case; the evidence must show an infringement of a right and a probability of success at trial

Court orders

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  1. 1.The Notice of Motion dated 14th June 2016 is dismissed
  2. 2.Costs of the application are awarded to the Respondent

Authorities

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Cases cited (2)

  • Giella -vs- Cassman Brown Company Ltd
    (1973) EA 358
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    (2003) eKLR (Civil Appeal No. 39 of 2002)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (provision not expressly cited in the 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, "Katsran Logistic Limited v Airtel Kenya Limited [2017] KEELC 2419 (KLR)", Case Analysis (2017). Notice of Motion dated 14th June 2016 (main suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2419/eng@2017-07-13

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