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ELCOtherNakuru ELC — Notice of Motion dated 20th July 2017 (suit over LR Nakuru Municipality Block 25/1117)· [2018] KEELC 4070 (KLR)
Joseph Kiamba Mailu v Teresia Wanjiku Kabogo [2018] KEELC 4070 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#A Kenyan land court said a boundary fight needs a survey, not an injunction, and ordered government surveyors to fix the beacons.
What this practically means
#Executive summary
#The plaintiff, administrator of the estate of Cleophas Maundu Mailu (deceased), sued over LR Nakuru Municipality Block 25/1117, which he acquired on distribution of the deceased's estate, the deceased having obtained it through Nakuru Teachers Housing Cooperative Society. He sought a permanent injunction and, by Notice of Motion dated 20th July 2017, a temporary injunction restraining the defendant from entering, disposing of, constructing on or dealing with the suit property, plus an order compelling the Nakuru County Surveyor to establish boundaries. The defendant, registered owner of adjoining Nakuru Municipality Block 25/368, opposed the application, deposing that plot 1117 was originally an undersized plot or planting space never meant for allocation, allegedly fraudulently allocated to the deceased non-member, and that a 1995 resurvey altered boundaries. She urged a joint survey of plots 367, 368 and 1117. The court considered the Giella v Cassman Brown injunction principles as elaborated in Nguruman Limited v Jan Bonde Nielsen. Rather than grant or refuse the injunction on those tests alone, the court found the real dispute concerned the correct location of beacons between adjoining registered plots. It declined the temporary injunction as unhelpful and instead ordered the District Surveyor Nakuru County and Land Registrar Nakuru County to conduct a ground survey establishing the correct beacon locations for the suit property and file a report within 60 days, with the parties sharing the survey costs equally and overall costs in the cause.
Key legal issues
#01
Applicability of the Giella v Cassman Brown principles to the injunction application
Holding
The court applied the Giella test but declined the injunction on the facts, preferring a survey to resolve the boundary dispute
Reasoning
Both parties are registered owners of adjoining plots and the dispute is really about the correct location of the beacons. The court found that an injunction would not resolve a boundary dispute and that a ground survey by the District Surveyor and Land Registrar, with a report filed within 60 days, was the pragmatic remedy. The defendant herself favoured a survey, supporting this course.
p. 2
Legal principles established
#- An applicant for an interlocutory injunction must sequentially establish a prima facie case with probability of success, that damages would not adequately compensate, and, if in doubt, the balance of convenience
Court orders
#- 1.District Surveyor Nakuru County and Land Registrar Nakuru County to go to the ground and carry out a survey to establish the correct location of the beacons in respect of LR Nakuru Municipality/Block 25/1117 and to prepare a report
- 2.The report to be filed in court within 60 days from delivery of the ruling
- 3.Parties to equally share the costs of the survey
- 4.Costs in the cause
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (interlocutory application in a land suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kiamba Mailu v Teresia Wanjiku Kabogo [2018] KEELC 4070 (KLR)", Case Analysis (2018). Nakuru ELC — Notice of Motion dated 20th July 2017 (suit over LR Nakuru Municipality Block 25/1117). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4070/eng@2018-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.