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ELCDismissedNot stated in the judgment· [2018] KEELC 1166 (KLR)

Peter Kalama & another v Mwidadi Said Chiphoro & 3 others [2018] KEELC 1166 (KLR)

Environment and Land Court
31 October 2018
JOJ. O. Olola
1,020 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 asking a court to stop alleged trespass must bring real proof, like a survey report, or the injunction application will fail.

What this practically means

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Executive summary

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The 1st Plaintiff, Peter Kalama, with authority from the 2nd Plaintiff, moved the court by Notice of Motion dated 8th February 2018 seeking a temporary injunction restraining the Defendants from entering, constructing structures on, or in any way interfering with the suit property known as Kilifi/Kadzonzo/Madzimbani/146 pending the hearing and determination of the suit. The Plaintiffs alleged that the Defendants trespassed in early 2015 and again in October 2015, cutting vegetation, building structures, digging trenches and laying bricks without permission, with reports made to the area Chief and Mariakani Police Station. The 2nd Defendant, Chengo Saidi Kivoro, opposed the application, accusing the Plaintiffs of material non-disclosure. He averred that the Defendants were registered owners of Plot No. Kawala 'B'/1373, arising from Kawala 'B' Adjudication Section, which they subdivided into Plots 1372 and 1373, selling the bordering Plot 1372 to Kamlesh Durgashanker Pandya and Minesh Govind Harji Nathoo, who obtained title in October 2016. The court applied the Giella v Cassman Brown principles for temporary injunctions. It found the Defendants had relinquished entitlement to the bordering portion about two years before the suit, and that the Plaintiffs had annexed no survey report or other evidence proving encroachment. The application was dismissed with costs to the Defendants.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case for a temporary injunction

Holding

No prima facie case was established; the evidence showed the Defendants had subdivided their parcel and sold the bordering portion before the suit was filed, and the Plaintiffs produced no survey report or proof of encroachment

Reasoning

The court applied the Giella v Cassman Brown principles. While the Plaintiffs alleged trespass and construction of structures by the Defendants, the supporting affidavit did not specify when the entry occurred or what structures were erected. The Defendants demonstrated by a Mutation Form and title deed that they had subdivided their original parcel Kawala 'B' 914 and sold the portion bordering the Plaintiffs' land to third parties about two years before the suit. Absent a survey report or other proof of encroachment, the Plaintiffs failed to show a prima facie case with probability of success.

p. 2

Legal principles established

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  • The principles for granting a temporary injunction are those in Giella v Cassman Brown: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt
  • An applicant for an injunction must adduce evidence, such as a survey report, proving the alleged encroachment

Court orders

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  1. 1.The application dated 8th February 2018 is dismissed with costs to the Defendants

Authorities

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Cases cited (1)

  • Giella –vs- Cassman Brown & Company Ltd
    (1973) EA 358
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to grant interlocutory injunctions pending hearing of the suit

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, "Peter Kalama & another v Mwidadi Said Chiphoro & 3 others [2018] KEELC 1166 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1166/eng@2018-10-31

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