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ELCAllowedNotice of motion dated 20th December 2018· [2019] KEELC 1075 (KLR)

Regional Container Freight Stations Ltd v Kenya Ports Authority [2019] KEELC 1075 (KLR)

Environment and Land Court
15 October 2019
CYC. K. Yano
2,430 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Mombasa's Environment and Land Court stopped the County Government from interfering with a businessman's land access, ruling an easement cannot be denied without a hearing.

What this practically means

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Executive summary

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The Plaintiff/Applicant, registered as lessee of parcel MOMBASA/BLOCK XLVII/157 for 99 years from the Government of Kenya, moved the court by notice of motion dated 20th December 2018 seeking a temporary injunction against the County Government of Mombasa. Its access to the parcel was blocked after the Respondent granted a third party, Ocean Freight Limited, use of the access road. The Respondent's letter of 30th May 2014 permitted the Applicant to use part of parcel MOMBASA/BLOCK XLVII/10 for access and parking, and the Applicant erected a perimeter wall and parking yard with approvals. The Respondent subsequently demolished the wall, alleging it was erected illegally on a road reserve, denying any allocation, and reporting the matter to the Ethics and Anti-Corruption Commission, whose investigations are ongoing. The application was canvassed by written submissions. Applying the Giella v Cassman Brown principles, the court found the Applicant's lease undisputed and the Respondent's conflicting correspondence capable of resolution only at trial. It held that the Respondent had granted an easement which was denied without hearing the Applicant, and that even termination of the easement required lawful means. The court found a prima facie case with probability of success, irreparable loss not compensable in damages, and the balance of convenience in favour of the Applicant in possession. The notice of motion was allowed with costs, with a temporary injunction restraining interference with the suit parcels pending determination of the suit.

Key legal issues

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01

Whether the Applicant established a prima facie case for temporary injunction

Holding

The Applicant established a prima facie case with a probability of success; conflicting letters from the Respondent about the grant of the easement can only be resolved at trial

Reasoning

The court found no dispute that the Applicant is the registered lessee of MI/BLOCK XLVII/157 and that its access was blocked by a third party granted access over MI/BLOCK XLVII/10. The Respondent's 'no objection' letter of 30th May 2014 permitted the Applicant to use part of that parcel for access and parking. Conflicting correspondence from the Respondent about the allocation could not be resolved on affidavit, but the denial of the easement without a hearing supported a prima facie case.

p. 3
02

Irreparable loss and balance of convenience

Holding

The Applicant's proprietary rights were jeopardized in a manner not compensable in damages, and the balance of convenience rested with the Applicant who was in possession and occupation

Reasoning

The court accepted that the demolition of the wall and the denial of access rendered the Applicant unable to use its property, a loss not adequately measurable in damages. Since the Applicant was in possession and occupation of the suit property and this was not disputed, the balance of convenience favoured maintaining the status quo pending trial.

p. 3

Legal principles established

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  • Definition of a prima facie case in a civil application
  • An easement, once granted, can only be terminated through lawful means and after a hearing

Court orders

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  1. 1.Temporary injunction restraining the Defendant, its agents, servants and anyone claiming under it from re-entering, trespassing onto, cultivating, interfering with or in any manner dealing with the suit land MI/BLOCK XLVII/157 and MI/BLOCK XLVII/10 pending hearing and determination of the suit
  2. 2.Costs of the application awarded to the Applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 40
  • Civil Procedure ActSection 3A
  • Fair Administrative Action ActSection 4(3)

Cases cited (10)

  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao Limited v First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
  • Augustine Odhiambo Abiero v K. K. Security Ltd
    (2014) eKLR
  • Olympic Sports House Limited v School Equipment Centre Limited
    (2012) eKLR
  • Aikman v Muchoki
    (1984) KLR 353
  • Kirobon Farmers Co. Ltd v Samuel O. Nyarangi
    (2017) eKLR
  • Nguru man Limited v Jan Bonde Nielsen and 2 Others
    (2014) eKLR
  • Redcliff Holdings Limited v The Registrar of Titles & 2 Others
    (2017) eKLR
  • Films Rover International v Cannon Films Sales Ltd
    (1986) 3 ALL ER 772
  • Stanley Munga Githunguri v Jimba Credit Corporation Limited
    Civil Appeal No. 144 of 1998
Jurisdiction invoked
Order 40 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (inherent jurisdiction of the court)

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, "Regional Container Freight Stations Ltd v Kenya Ports Authority [2019] KEELC 1075 (KLR)", Case Analysis (2019). Notice of motion dated 20th December 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1075/eng@2019-10-15

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