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ELCDismissedNot stated in judgment (Plaint dated 19th May 2017, Thika ELC)· [2018] KEELC 1241 (KLR)

Michael Njiiri Kariuki v Ferdinard Ndungu Waititu Babayao & 3 others [2018] KEELC 1241 (KLR)

Environment and Land Court
19 October 2018
LGL. GACHERU
2,206 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A title deed alone wasn't enough to stop road construction on disputed Thika land; the court said boundary questions must be resolved at a full trial.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Thika, delivered by L. Gacheru J on 19th October 2018, determined a Notice of Motion dated 19th May 2017 in a suit by the Plaintiff, Michael Njiiru Kariuki, registered proprietor (as lessee) of LR.No.12646/4 in Thika Municipality. The Plaintiff sought a temporary injunction restraining the Defendants - including Hon. Ferdinard Ndungu Waititu - from trespassing on or constructing on his land, a mandatory injunction for demolition of structures, closure of an access road, restoration of the land to farmland, police security, and costs. He alleged that on 9th May 2017 the Defendants entered the land with road construction equipment, destroyed the fence and crops, and levelled a murram access road connecting to the Nairobi-Thika Highway without his authority. The Defendants denied encroachment, contending the road was constructed on a road reserve and riparian area of Chania River, that the Plaintiff himself had encroached, and that the National Land Commission was in the process of compulsorily acquiring the parcel under Sections 112 and 162(2) of the Land Act 2012 with full compensation to follow. Applying Giella v Cassman Brown, the court found the encroachment question was a disputed factual issue requiring the Government Surveyor's evidence at trial, and that the Plaintiff had therefore not established a prima facie case with probability of success. Since the Giella conditions are sequential, the other limbs fell away. The mandatory injunction and the orders for road closure and restoration were refused as final relief that could not be granted at the interlocutory stage. The application was dismissed entirely with costs in the cause, interim orders discharged, and the parties directed to prepare the main suit for hearing expeditiously.

Key legal issues

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01

Whether the Applicant established a prima facie case for temporary injunction

Holding

No. Despite holding a Certificate of Title, the Applicant failed to establish a prima facie case because encroachment on the riparian area/road reserve is a disputed fact reserved for trial.

Reasoning

The Applicant holds title to LR.No.12646/4, but the Defendants contend the access road was built on a road reserve and riparian area and that the Plaintiff encroached. The court held that determining the boundary question requires the Government Surveyor's evidence at trial and cannot be resolved on affidavit evidence. With uncertainty as to whether the road is on the Plaintiff's land, no prima facie case was made out, and the sequential Giella principles meant the other limbs fell away.

p. 3
02

Whether mandatory injunction, road closure and restoration orders could issue at the interlocutory stage

Holding

No. These would be final orders; the lower-risk course was to refuse the mandatory orders pending full trial.

Reasoning

The mandatory injunction sought demolition and removal of structures; closure of the road and restoration were orders also sought in the Plaint. Granting them would determine part of the claim without hearing and testing evidence through cross-examination. Mandatory injunctions require special circumstances. Given the pending compulsory acquisition by the National Land Commission, the court applied the lower risk of injustice principle and disallowed the mandatory orders.

p. 3

Legal principles established

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  • The Giella conditions for temporary injunctions are sequential; if the first (prima facie case) fails, the other limbs need not be addressed
  • A mandatory injunction will not normally be granted on an interlocutory application absent special circumstances
  • Where the court has granted an interlocutory injunction, it should not grant a mandatory injunction that ends the litigation at that stage
  • The court should choose the course carrying the lower risk of injustice if it turns out to be wrong

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 19th May 2017 is dismissed entirely
  2. 2.Costs of the application to be in the cause
  3. 3.The interim orders in force are discharged and/or vacated
  4. 4.Parties to prepare the main suit for hearing expeditiously
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit property LR.No.12646/4 (injunctive relief concerning land); no specific constitutional provision invoked

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, "Michael Njiiri Kariuki v Ferdinard Ndungu Waititu Babayao & 3 others [2018] KEELC 1241 (KLR)", Case Analysis (2018). Not stated in judgment (Plaint dated 19th May 2017, Thika ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1241/eng@2018-10-19

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