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ELCDismissedNot stated in judgment (Notice of Motion dated 29th March 2018)· [2019] KEELC 2514 (KLR)

Maurice Nabwera Matanda & another v Julius Migot Otieno [2019] KEELC 2514 (KLR)

Environment and Land Court (implied from subject matter; judgment does not name the court)
11 July 2019
JOJ.O. Olola
1,072 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Malindi court refused to stop a land dispute because the buyers couldn't prove exactly what land they owned, since it was unsurveyed and unregistered.

What this practically means

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Executive summary

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By a Notice of Motion dated 29th March 2018, Maurice Nabwera Matanda and Hellen Nasutcha Mabwa sought an injunction restraining Julius Migot Otieno from interfering with, trespassing onto, selling or disposing of a parcel of land said to be situated at Kwa Chocha (Kaoyeni) neighbouring Malindi Airport. The Applicants claimed to have purchased the land from one Dickson Kaingu Mangi on 11th July 2008 and to have been in occupation since, and alleged that the Respondent had entered and begun erecting a perimeter fence. The Respondent countered that he was the legal owner, having purchased his parcel from one Kitsao Baya Kithunga, who inherited it from his parents, and that the parcel was separate from but neighbouring that of Dickson Kaingu Mangi. J.O. Olola J applied the Giella v Cassman Brown principles for injunctive relief, quoting the Court of Appeal in Nguruman Ltd v Jan Bonde Nielsen on the burden of proving a prima facie case and Mrao Ltd v First American Bank of Kenya on its definition. On the material, the court found the disputed land was unsurveyed and unregistered; both parties relied only on sale agreements which did not establish the sellers' rights of ownership. The Applicants could not even determine the size of the parcel they claimed or the extent of the alleged encroachment, having sold part of the original 0.5 acres. The court held that granting the injunction would deny the Respondent an opportunity to adduce evidence on his acquisition, and that the onus lay on the Applicants to demonstrate the encroachment. The application was dismissed with costs to the Respondent.

Key legal issues

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01

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

Holding

No - the land is unsurveyed/unregistered, the sellers' rights of ownership were unproved, and the size of the parcel and extent of encroachment could not be determined

Reasoning

Both parties produced sale agreements but nothing showed what rights the sellers had over the unsurveyed, unregistered land. The Applicants' own description made it impossible to determine the size of the parcel they claim or the extent of the alleged encroachment. Granting the injunction would pre-empt the Respondent's evidence on how he acquired his land.

p. 2
02

On whom the onus lies to demonstrate encroachment/trespass

Holding

The onus lies on the Applicants to demonstrate the alleged extent of encroachment and/or trespass

Reasoning

The court reasoned that allowing the prayers would deny the Respondent the opportunity to tender evidence on how he acquired his portion and its extent. Since the Applicants assert ownership and encroachment, the evidential burden rests on them to demonstrate the encroachment before injunctive relief can issue.

p. 2

Legal principles established

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  • A party seeking an injunction must satisfy the Giella v Cassman Brown principles: prima facie case with probability of success, irreparable damage not compensable in damages, and if in doubt, balance of convenience
  • The burden of proving a prima facie case lies on the applicant, who must show a clear and unmistakable right directly threatened by the act sought to be restrained

Court orders

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  1. 1.The Notice of Motion dated 29th March 2018 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Cases cited (3)

  • Giella –vs- Cassman Brown & Company Ltd
    (1973) EA 358
  • Nguruman Ltd –vs- Jan Bonde Nielsen & 2 Others
    (2014) eKLR
  • Mrao Ltd –vs- First American Bank of Kenya & 2 Others
    (2003) KLR 125
Jurisdiction invoked
Not stated in judgment

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, "Maurice Nabwera Matanda & another v Julius Migot Otieno [2019] KEELC 2514 (KLR)", Case Analysis (2019). Not stated in judgment (Notice of Motion dated 29th March 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2514/eng@2019-07-11

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