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ELCAllowedELC Case No. 357 of 2017 (Mombasa) - Amended Notice of Motion dated 8th November 2017· [2018] KEELC 2343 (KLR)

Ludco Limited v Suleiman Omar Mwarogo & 4 others (Environment & Land Case 356 of 2017) [2018] KEELC 2343 (KLR)

Environment and Land Court
26 July 2018
CYC. Yano
1,913 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Mombasa court ordered land invaders to demolish their own structures, showing Kenyan courts will act fast when a registered owner's land is grabbed.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of Subdivision Number CR. 1046/9 being Plots Numbers 14297 to 14327 of Section II Mainland North (titles CR 65095 to CR 65125), moved the court by amended Notice of Motion dated 8th November 2017 seeking a temporary injunction restraining the Defendants from sub-dividing, fencing, constructing, alienating or disposing of the suit property, and a mandatory injunction compelling demolition of structures erected on the land and vacation of the property. The Plaintiff alleged the Defendants had invaded the land, erected poles and structures, and threatened its representatives with violence; some Defendants were apprehended and charged with offences including willful damage to property. The Defendants, through a replying affidavit of Suleiman Omar Mwarongo aka Chibwada, denied the acts of sub-division and construction, claimed long continuous occupation entitling them to sue for adverse possession, and alleged that their houses were demolished on 18th November 2017 by the Plaintiff and police; they sought maintenance of the status quo. Applying the Giella principles, the court found the Plaintiff had established a prima facie case as registered proprietor, that damage from continued alienation would be unquantifiable, and that the balance of convenience favoured the Plaintiff. Applying the higher Locabail standard for mandatory injunctions, the court found special circumstances existed: the structures were erected from April 2016 and immediately before the suit, and the Defendants' conduct amounted to stealing a match on the Plaintiff. The amended motion was allowed in its entirety with costs to the applicant, the orders applying to ELC Case No. 357 of 2017.

Key legal issues

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01

Temporary injunction

Holding

Granted - the Plaintiff, as registered proprietor, established a prima facie case, irreparable damage not quantifiable in damages, and balance of convenience.

Reasoning

The court applied the settled Giella principles. Registration of the Plaintiff as proprietor of the suit property was not in dispute. Any damage from continued alienation to third parties would be enormous and unquantifiable, and the balance of convenience favoured the registered owner pending full hearing.

p. 2
02

Mandatory injunction at interlocutory stage

Holding

Granted - special circumstances existed; the Defendants' actions amounted to stealing a match on the Plaintiff and this was a clear case decidable summarily.

Reasoning

The court applied the Locabail standard, noting a higher threshold than for prohibitory injunctions. The structures were erected from April 2016 and immediately before the suit; some Defendants faced criminal charges including willful damage to property and failed to disclose when their alleged occupation began. This constituted stealing a match, warranting the mandatory order.

p. 3

Legal principles established

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  • A mandatory injunction at the interlocutory stage requires special circumstances, clear cases, and a higher standard of assurance than a prohibitory injunction.
  • The Giella principles govern interlocutory injunctions.

Court orders

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  1. 1.Temporary injunction restraining the Defendants, their servants or agents from sub-dividing, fencing, demarcating, constructing, alienating or disposing of the suit property pending the hearing and determination of the main suit
  2. 2.Mandatory injunction compelling the Defendants to demolish/pull down to ground level the illegal structures on SUBDIVISION NUMBER CR. 1046/9 BEING PLOTS NUMBERS 14297 TO 14327 OF SECTION II MAINLAND NORTH (titles CR 65095 to CR 65125) and vacate, supervised by an authorized police officer from Bamburi Police Station
  3. 3.Costs of the application to the applicant, the orders to apply to ELC Case No. 357 of 2017

Authorities

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Legislation

  • Civil Procedure ActSections 1A and 1B

Cases cited (4)

  • Maher Unissa Karim –v- Edward Oluch Odumbe
    (2015) eKLR
  • Locabail Enterprises Finance Ltd –v- Agro Exports and Another
    (1986) 1 ALL ER 901
  • Robai Kadili Aguta and Another –v- Kenya Power & Lighting Company Ltd
    (2015) eKLR
  • Giella –v- Cassman Brown & Co Ltd
    (1973) EA 358
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (interlocutory application in the main 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, "Ludco Limited v Suleiman Omar Mwarogo & 4 others (Environment & Land Case 356 of 2017) [2018] KEELC 2343 (KLR)", Case Analysis (2018). ELC Case No. 357 of 2017 (Mombasa) - Amended Notice of Motion dated 8th November 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2343/eng@2018-07-26

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