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ELCPartially AllowedELC 126 of 2012· [2018] KEELC 2983 (KLR)

Simon Towett Maritim v Jotham Muiruri Kibaru & another [2018] KEELC 2983 (KLR)

Environment and Land Court
15 May 2018
DOD. O. Ohungo
887 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 blocked a rival's construction for 18 months after showing the court he was likely to win the ownership dispute.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Nakuru on a Notice of Motion dated 14th February 2017 in which the plaintiff, Simon Towett Maritim, sought an injunction restraining the defendant, Jotham Muiruri Kinaru, from erecting structures, constructing on, building on, or depositing construction materials on land parcel Dundori/Mugwathi Block 2/20 pending hearing of the suit. The plaintiff deposed that in 1997 the parties exchanged parcels of land: the Dundori plot for a Kericho plot, but his occupation of the Kericho plot was later invalidated by a court and the plot reverted to the defendant, who nonetheless retained the Dundori plot and claimed it by adverse possession. The defendant opposed, stating he had lived on the land for about 25 years, had long stored building stones there, and did not intend to construct a permanent house. Applying the Giella v Cassman Brown test as elaborated in Nguruman Limited v Jan Bonde Nielsen, the court found that the defendant's recent deposit of construction materials and photographs showing a gate and apparent perimeter wall raised valid fears calling for preservation of the suit property. The court held a prima facie case had been established and damages would not adequately compensate the plaintiff. It granted an injunction but on terms, limiting its lifespan to 18 months to encourage the parties to have the main suit heard without delay, and awarded costs of the application to the applicant.

Key legal issues

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01

Whether an interlocutory injunction should issue to restrain development on the suit land

Holding

Yes, but only for a limited period of 18 months, because the applicant established a prima facie case and damages would not adequately compensate him.

Reasoning

The respondent admitted depositing building stones on the suit property in February 2017, which triggered the application. Although the respondent assured the court he did not intend to construct a permanent house, photographs showed construction of a gate and what appeared to be a perimeter wall, raising valid fears requiring preservation of the property. The applicant therefore established a prima facie case with probability of success, and damages would not suffice. To push the parties to resolve the root cause, the injunction was limited to 18 months.

p. 2

Legal principles established

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  • The three Giella conditions are separate, distinct and logical hurdles to be surmounted sequentially; if a prima facie case is not established, irreparable injury and balance of convenience need no consideration.

Court orders

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  1. 1.An injunction restraining the defendant (Jotham Muiruri Kinaru) from erecting structures, constructing on, depositing construction materials upon or in any other manner carrying out any developments on land parcel number Dundori/Mugwathi Block 2/20 for a period of 18 (eighteen) months from the date of delivery of the ruling
  2. 2.Costs of the application awarded to the applicant

Authorities

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Cases cited (2)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (ELC suit No. 126 of 2012); no specific provision cited

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, "Simon Towett Maritim v Jotham Muiruri Kibaru & another [2018] KEELC 2983 (KLR)", Case Analysis (2018). ELC 126 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2983/eng@2018-05-15

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