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ELCPartially AllowedNot stated in the excerpt (Notice of Motion dated 14th November 2017)· [2018] KEELC 4285 (KLR)

Anne Wambui Gatheru & another v Kenya Railways Corporation & another [2018] KEELC 4285 (KLR)

Environment and Land Court
19 February 2018
COChristine Ochieng
2,421 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 who proves registered ownership and trespass can secure court protection of their land, even if only a temporary freeze on the situation.

What this practically means

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Executive summary

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The Plaintiffs, registered proprietors of land parcels KAJIADO/NTASHART/263 and 265, moved the Environment and Land Court at Ngong by Notice of Motion dated 14th November 2017 seeking a temporary injunction, alleging that in June 2017 the Defendants entered their lands, constructed a road, damaged perimeter walls and commenced construction without their consent. The 1st Defendant, through a replying affidavit of its Assistant Land Surveyor Salome Saru Kamau, opposed the application, contending that the Registry Index Map shows different shapes and acreages for the suit parcels, that the Plaintiffs' boundaries overlap parcels 274 and 282, that it had not undertaken acquisition or handed over the site to the contractor, that no acts of trespass were ongoing, and that no principal-agent relationship with the 2nd Defendant was established. The 2nd Defendant filed no response. Applying the Giella v Cassman Brown principles, the court held that the Plaintiffs' undisputed ownership, the uncontroverted allegation of road construction by the 2nd Defendant, and an unexecuted draft lease prepared by the 2nd Defendant established a prima facie case per Mrao Ltd v First American Bank. The alleged injuries were found actual rather than speculative under Nguruman, and the balance of convenience favoured the Plaintiffs. However, because the exact acreage and boundary of the suit lands required determination at trial, the court preserved the status quo of the parties pending the hearing and determination of the suit rather than granting a conventional injunction, awarded the costs of the application to the Plaintiffs, and urged compliance with Order 11 to expedite trial.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case with probability of success

Holding

Yes - registered ownership is undisputed, the alleged road construction by the 2nd Defendant was not denied, and a draft lease prepared by the 2nd Defendant was exhibited.

Reasoning

The court found the Plaintiffs are undisputed registered proprietors. The alleged entry and road construction by the 2nd Defendant was not denied by any Defendant, and the 2nd Plaintiff annexed an unexecuted lease agreement prepared by the 2nd Defendant. Boundary and acreage disputes were held to be matters for trial, but on the material presented the Plaintiffs crossed the prima facie threshold.

p. 4
02

Whether the Plaintiffs would suffer irreparable loss not compensable by damages

Holding

Yes - the injuries alleged were actual, not speculative, given destruction of the perimeter wall and construction on registered land.

Reasoning

Relying on Nguruman, the court held the burden is on the applicant to demonstrate actual, substantial and demonstrable injury beyond monetary compensation. The Plaintiffs, as registered owners facing alleged demolition of a perimeter wall and unauthorised road construction, demonstrated harm that was not speculative, satisfying the second Giella limb.

p. 4
03

Where the balance of convenience lies

Holding

It tilts in favour of the Plaintiffs, who proved ownership, while the 2nd Defendant filed no response to controvert the trespass allegations.

Reasoning

The court found ownership proven and the alleged trespass by the 2nd Defendant uncontroverted, as that Defendant filed no response. This tipped the balance of convenience toward the Plaintiffs on the third Giella limb, supporting preservation of the status quo pending trial.

p. 4

Legal principles established

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  • The Giella test governs interim injunctions: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt.
  • A prima facie case in civil matters requires apparent infringement of a right with probability of success, higher than an arguable case.

Court orders

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  1. 1.The parties will observe and maintain the obtaining status quo pending the hearing and determination of the suit.
  2. 2.The costs of the application is awarded to the Plaintiffs.
  3. 3.Parties are urged to comply with Order 11 and set the suit down for hearing as soon as possible.

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Environment and Land Court ActSection 13(1) & (2)(b)
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 19; Order 11

Cases cited (3)

  • Giella Vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao Limited Vs. First American Bank of Kenya Limited & 2 others
    (2003) KLR 125
  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    CA No. 77 of 2012
Jurisdiction invoked
Article 40 of the Constitution; Section 13(1) & (2)(b) of the Environment and Land Court Act, 2011; Section 3A of the Civil Procedure Act; Order 19 of the Civil Procedure Rules

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, "Anne Wambui Gatheru & another v Kenya Railways Corporation & another [2018] KEELC 4285 (KLR)", Case Analysis (2018). Not stated in the excerpt (Notice of Motion dated 14th November 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4285/eng@2018-02-19

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