Joseph Kithuku Kitonga v Dena Kalume & another [2018] KEELC 1387 (KLR)
The bottom line
#A Mombasa court evicted defendants from a blocked plot because an official survey proved the owner's claim, showing joint surveys can decide land disputes early.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success
The court found a prima facie case established, relying on the joint survey report which confirmed the existence of Plot LR No. 1043/III/155 and that a structure blocked its entire frontage, coupled with the Defendants' own admission that they had no claim on Plot No. 155.
The court noted that a prima facie case is one showing an apparently infringed right calling for an explanation. The Kilifi County Surveyor's joint survey, ordered by consent and unchallenged by any contrary report, confirmed the plot exists and that an existing structure blocks the whole frontage. The Defendants' assertion in their replying affidavit that they had no claim on Plot No. 155 and had not encroached on it further supported the Applicant's claim of proprietorship.
Whether the Applicant demonstrated irreparable injury not compensable by damages
The court found irreparable injury established because the structure blocking part of the plot would prevent the Plaintiff from developing it, and damages would not adequately compensate for denial of access and use.
The court reasoned that the survey report confirmed a structure blocking part of the plot and the Plaintiff would be unable to develop his plot if the structure remained. Since the Defendants disclaimed any claim on Plot No. 155, the balance of convenience favoured the Plaintiff, who stood to lose if the structure was allowed to remain pending trial.
Whether the stringent test for a mandatory injunction was met
The court held that the Applicant had a clear and strong case warranting a mandatory injunction, given the surveyor's report confirming construction on the Plaintiff's plot blocking access.
Applying the test in Shepherd Homes Ltd v Sandahm as adopted by the Court of Appeal in Lucy Wangui Gachara v Minudi Okombe Lore, a mandatory injunction at the interlocutory stage requires an unusually strong and clear case and a high degree of assurance that the injunction was rightly granted. The court found that standard satisfied on the survey evidence.
Whether the survey report could be relied upon
The court found no justifiable cause to disregard the survey report, noting it was a joint survey by the Kilifi County Surveyor undertaken by consent and was unchallenged by any other report.
The Defendants urged the court not to rely on the report, contending it was premised on unsubstantiated allegations of ownership. The court found this curious, suggesting it was because the report favoured the Plaintiff, and held that the Defendants had shown no justifiable cause why the report could not be relied upon, especially as no other survey report challenged it.
Legal principles established
#- Definition of a prima facie case in civil applications
- A mandatory injunction at the interlocutory stage requires an unusually strong and clear case
- Full and frank disclosure plus demonstration of a right to be protected is required to succeed on an injunction application
Court orders
#- 1.An order of temporary injunction restraining the Defendants by themselves, their agents, employees, representatives or contractors, servants and/or any other person acting and or claiming through or under them from undertaking and or continuing any developments, constructions and erecting any structures on Plot Known as LR. NO. 1043/III/155 Mazeras Township and occupying, remaining in occupation and/or undertaking any annexation of the same pending the hearing and final determination of the suit
- 2.An order of eviction against the Defendants from Plot Known as L.R. NO. 1043/III/155 Mazeras Township and demolition of stalls, such eviction to be supervised by the OCs Mariakani Police Station
- 3.Costs of the application to abide the outcome of the main suit
- Jurisdiction invoked
- Order 40 Rules 1, 2, 4 and 10 of the Civil Procedure Rules 2010; Articles 159 of the Constitution; Sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act; Sections 3, 13A, 16 and 19 of the Government Proceedings Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kithuku Kitonga v Dena Kalume & another [2018] KEELC 1387 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1387/eng@2018-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.