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ELCDismissedNot stated in judgment· [2018] KEELC 4193 (KLR)

Dave Munyalo Musyoka v John Peter Macharia [2018] KEELC 4193 (KLR)

Environment and Land Court
23 February 2018
CMC.G. Mbogo
1,124 words in judgment
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The bottom line

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A Kenyan landowner lost his bid for a court injunction because he couldn't prove his exact plot boundaries, ownership documents, or harm he'd suffer.

What this practically means

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Executive summary

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The plaintiff, Dave Munyao Musyoka, applied by notice of motion under Order 40 Rules 1(a) and 2 and Order 51 Rule 1 of the Civil Procedure Rules, and Sections 1A, 1B and 3A of the Civil Procedure Act, for an interlocutory injunction restraining the defendant from entering, trespassing on, damaging or interfering with plot no. 1257 Kikumbulyu/Mikuyuni adjudication section, pending hearing of the suit. The plaintiff claimed to be the registered owner of plot 1257 and alleged the defendant, owner of adjoining plot 363, demolished his perimeter wall and forcibly prevented its reconstruction. The defendant denied knowledge of plot 1257 and asserted the plaintiff had encroached on his land, characterising the dispute as a boundary dispute. The application was disposed of by written submissions. Applying the Giella v Cassman Brown principles, Mbogo J held that the applicant failed to establish a prima facie case because the sale agreement described the plot sold 'as marked on the ground' with no evidence of that marking, the area map was not availed, and the surveyor's report would only be useful at the hearing. The court further found no evidence of irreparable injury, and that the balance of convenience tilted in favour of the respondent. Holding that the three principles had to be satisfied sequentially, the court dismissed the application with costs to the respondent. The substantive suit remains pending.

Key legal issues

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01

Prima facie case with probability of success

Holding

Not established - the exact size and boundaries of the applicant's purchased plot were unproven; the surveyor's report alone, without the area map, was insufficient at the interlocutory stage

Reasoning

The sale agreement annexed showed the plot sold 'as marked on the ground' but no evidence of that marking was produced apart from the surveyor's report, and the area map showing plots 1257 and 363 was not availed. The court held the applicant had not satisfied this first principle.

p. 2
02

Irreparable injury

Holding

Not established - no evidence whatsoever was laid before the court

Reasoning

The court found that the applicant's counsel was silent on irreparable injury in submissions and that no evidence was laid before the court demonstrating irreparable harm not compensable in damages.

p. 2
03

Balance of convenience

Holding

Tilts in favour of the respondent

Reasoning

Having failed on the first two principles, and on the reasons enumerated earlier, the court found the balance of convenience favoured the respondent, and the applicant, having failed to satisfy all three principles sequentially, could not obtain the injunction.

p. 2

Legal principles established

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  • An applicant for an interlocutory injunction must satisfy the three Giella v Cassman Brown principles sequentially

Court orders

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  1. 1.The notice of motion application is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1(a) and 2
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1A, 1B, 3A

Cases cited (3)

  • Giella vs Cassman Browns & Co. Ltd
    [1973] EA 358
  • Ahmed Ibrahim Suleiman and another Vs Noor Khamisi Surus
    [2013] eKLR
  • JAJ Super Power Cash Carry Ltd Vs Nairobi City Council and 20 others
    Civil Appeal No. 111 of 2002
Jurisdiction invoked
Order 40 Rule 1(a) and 2, Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A 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, "Dave Munyalo Musyoka v John Peter Macharia [2018] KEELC 4193 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4193/eng@2018-02-23

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