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ELCAllowed· [2017] KEELC 2763 (KLR)

Philip Kairu Kahura v Embakasi Ranching Co. Ltd & 3 others [2017] KEELC 2763 (KLR)

Environment and Land Court
2 June 2017
1,279 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 plots in 1993 stopped rivals from taking his Embakasi land after the court found he had a strong ownership case.

What this practically means

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Executive summary

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This was an unopposed Notice of Motion dated 23rd June 2015 in which the Plaintiff, Philip Kairu Kahura, sought a temporary injunction restraining the Defendants from trespassing on, taking possession of, selling, charging or otherwise interfering with his possession of Plot Nos P1930 and P1930B (Nairobi/Block 105/5403 and 5404) at Embakasi Ranch, pending the hearing and determination of the suit. The Plaintiff averred that he purchased the properties in 1993 from Humphrey W. Ngima, an allottee of the 1st Defendant, was issued Share Certificate No. 0053, took possession, fenced the land, constructed a permanent house, store and cow shed, and cultivated crops. In June 2015 thugs allegedly sent by the 1st Defendant invaded the land, demolished his house and removed his gate. The Defendants were duly served but filed no response. Applying the Giella v Cassman Brown conditions, and guided by Mrao v First American Bank, Airland Tours, Niaz Mohamed Jan Mohamed and Nguruman Ltd, the court found the Plaintiff had established a prima facie case with probability of success, that damages would not adequately compensate the infringement of his right of possession, and that the balance of convenience favoured him as the party in physical possession. The application was allowed with costs to the Plaintiff.

Key legal issues

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01

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

Holding

Yes. Unchallenged evidence of purchase, transfer, Share Certificate No. 0053 and possession established ownership on an interlocutory basis.

Reasoning

The Plaintiff asserted ownership having purchased the suit properties from Humphrey W. Ngima, an allottee of the 1st Defendant. He produced receipts issued by the 1st Defendant to Ngima, receipts issued in his own name, and Share Certificate No. 0053. Despite due service, no Defendant filed a response or challenged these assertions. The court therefore had no difficulty finding that the Plaintiff demonstrated ownership and established a prima facie case with probability of success at the main trial.

p. 2
02

Whether damages would be an adequate remedy

Holding

No. Damages would not suffice for the infringement of the Plaintiff's right of possession over the suit properties.

Reasoning

Relying on Niaz Mohamed Jan Mohamed v The Commissioner of Lands, the court held that no amount of money can adequately compensate infringement of a right of possession such as the Plaintiff's. The Plaintiff was in physical possession, had constructed a permanent house, store and cow shed and cultivated the land; the invasion and demolition by thugs allegedly sent by the 1st Defendant showed a real threat to that possession.

p. 3
03

In whose favour the balance of convenience tilts

Holding

In favour of the Plaintiff, being the party in physical possession of the suit properties.

Reasoning

Citing Nguruman Ltd v Jan Bonde Nielsen, the court observed that the balance of convenience arises where there is doubt as to the adequacy of damages remedies. Having found the Plaintiff to be the party in physical possession, the court held the balance of convenience tilted in his favour.

p. 3

Legal principles established

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  • Conditions for grant of interlocutory injunction: prima facie case with probability of success; irreparable injury not compensable in damages; balance of convenience
  • Definition of a prima facie case in civil applications
  • Interlocutory findings are not conclusive and must await full trial

Court orders

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  1. 1.Temporary injunction granted restraining the Defendants/Respondents from trespassing on, taking possession of, selling, charging or in any other way interfering with the Plaintiff's possession of the suit properties pending the hearing and determination of the suit
  2. 2.Application allowed with costs to the Plaintiff

Authorities

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Cases cited (5)

  • GIELLA versus CASSMAN BROWN
    (1973) EA 358
  • MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    (2003) KLR 125
  • Airland Tours & Travels Ltd versus National Industrial Credit Bank
    Milimani High Court Civil Case No. 1234 of 2002
  • Niaz Mohamed Jan Mohamed versus The Commissioner of Lands
    (1996) eKLR
  • Nguruman Ltd versus Jan Bonde Nielsen
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction over land matters; interlocutory application under the Civil Procedure Act/Rules (not expressly cited in judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Philip Kairu Kahura v Embakasi Ranching Co. Ltd & 3 others [2017] KEELC 2763 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2763/eng@2017-06-02

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