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ELCAllowedNot stated in the judgment· [2018] KEELC 2073 (KLR)

Harrison Chege Kariuki v Jeremiah Kanyanjua Njuguna & 4 others [2018] KEELC 2073 (KLR)

Environment and Land Court
31 July 2018
MOM.C. Oundo
1,468 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 won a court order stopping neighbours from interfering with his land after a survey showed his fences matched official records.

What this practically means

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Executive summary

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The plaintiff, Harrison Chege Kariuki, moved the Environment and Land Court at Nyahururu by Notice of Motion dated 15th May 2017 under Order 40 Rules 1(a), 3 and 4 of the Civil Procedure Rules and Sections 1A and 1B of the Civil Procedure Act, seeking an interlocutory injunction restraining the respondents from trespassing on, damaging or interfering with his quiet possession of parcels Nyandarua/Ol Aragwai/6282 and 6283, with police assistance in enforcement and costs. The applicant claimed he purchased the parcels, excised from mother title 1618, from the 3rd and 4th respondents and from Bernard Chege, and that the respondents destroyed his fence and gate on the allegation that he had blocked an access road. The respondents contended that an access road had been mischievously omitted from the mutation and Registry Index Map, that signatures and thumbprints on the mutation form were forgeries, and sought dismissal with costs. Applying the Giella v Cassman Brown principles, and having considered the court surveyor's report of 18th May 2018, the court found the surveyor confirmed the road's existence but not that it crossed the applicant's parcels, and that the fencing accorded with survey records, establishing a prima facie case. It further found irreparable harm and that the balance of convenience favoured the applicant. The application succeeded with costs, and the parties were directed to set the suit down for hearing within 21 days.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

The applicant established a prima facie case with probability of success, aided by the surveyor's report and the fencing of the parcels consistent with survey records.

Reasoning

The court considered the parties' competing claims over the alleged access road and studied the surveyor's report dated 18th May 2018. The surveyor confirmed the existence of an access road but did not state that it ran through the applicant's land, and confirmed the parcels were correctly fenced per survey records. On that basis the applicant established a prima facie case with probability of success at the interlocutory stage.

p. 2
02

Irreparable harm and balance of convenience

Holding

The applicant stood to suffer irreparable harm and the balance of convenience favoured granting the injunction.

Reasoning

The court applied the second and third Giella principles, finding the applicant would suffer irreparably if the injunction were refused and that the balance of convenience tilted in favour of granting the injunctive orders. The application accordingly succeeded with costs.

p. 3

Legal principles established

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  • The conditions for granting an interlocutory injunction are a prima facie case with probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience.

Court orders

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  1. 1.An injunction restraining the respondents from trespassing into, damaging any fence or property on, or interfering with the applicant's quiet possession of Title Numbers Nyandarua/Ol Aragwai/6283 and Nyandarua/Ol Aragwai/6282 pending the hearing and determination of the suit
  2. 2.The OCS Kinangop Police Station to assist in enforcing the order, if need be
  3. 3.Costs of the application to the applicant
  4. 4.Parties to set down the suit for hearing expeditiously by complying with Section 11 of the Civil Procedure Rules within 21 days of delivery of the ruling
Jurisdiction invoked
Order 40 Rules 1(a), 3 and 4 of the Civil Procedure Rules; Sections 1A and 1B of the Civil Procedure Act

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, "Harrison Chege Kariuki v Jeremiah Kanyanjua Njuguna & 4 others [2018] KEELC 2073 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2073/eng@2018-07-31

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