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ELCDismissedNotice of Motion dated 7th August 2017 (suit filed at Malindi)· [2019] KEELC 4253 (KLR)

Peponi Hotel Limited v Ali Ahmed Mohamed [2019] KEELC 4253 (KLR)

Environment and Land Court (High Court)
14 March 2019
JOJ. O. Olola
951 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed Peponi Hotel's bid to stop a neighbour's construction because the hotel provided no survey report proving any encroachment on its land.

What this practically means

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Executive summary

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Peponi Hotel Limited, the registered owner of Plot Lamu Island/Block III/164 at Shela Village, Lamu, applied by Notice of Motion dated 7th August 2017 for an interlocutory injunction to restrain Ali Ahmed Mohamed from continuing construction of a permanent residential house on a neighbouring plot, alleging that the construction trespassed onto its land. The Defendant, in a Replying Affidavit sworn 5th September 2017, admitted carrying out construction jointly with his brother Adussattar Ahmed Mohamed on Plot Lamu/Block III/174, which he owned jointly with his brother, but denied that the construction extended beyond their boundary into the Plaintiff's parcel. J.O. Olola J applied the settled Giella v Cassman Brown conditions for interlocutory injunctions. Relying on Mrao Ltd v First American Bank on what constitutes a prima facie case, and Nguruman Ltd v Jan Bonde Nielsen on the burden of proving a clear and unmistakable right, the court found that the Plaintiff, despite the Defendant's denial, had provided no survey report or other evidence in its supporting or supplementary affidavits to demonstrate any encroachment or its extent. The Defendant, by contrast, had shown ownership of the adjacent plot on which the impugned construction was being carried out. The first Giella condition therefore failed and the application was dismissed with costs to the Defendant on 14th March 2019. The dismissal was of the interlocutory application only and does not determine the substantive suit.

Key legal issues

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01

Whether the Plaintiff established a prima facie case of encroachment to justify an interlocutory injunction

Holding

The Plaintiff failed to establish a prima facie case because it provided no survey report or other evidence proving that the Defendant's construction encroached on its parcel, especially in the face of the Defendant's denial

Reasoning

Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, the court required evidence of an apparent infringement of a right with a probability of success. The Plaintiff relied solely on assertion of ownership and allegations of encroachment. The Defendant denied encroachment and showed ownership of the adjacent plot. Without a survey report in the supporting or supplementary affidavits, the infringement of the Plaintiff's right was not demonstrated, so the first Giella condition failed and the application fell.

p. 2

Legal principles established

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  • The conditions for the grant of an interlocutory injunction are: a prima facie case with a probability of success, irreparable injury not adequately compensable by damages, and, if in doubt, the balance of convenience
  • A prima facie case is more than an arguable case; the evidence must show an infringement of a right and a probability of success upon trial
  • The party asserting a prima facie case 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 7th August 2017 is dismissed
  2. 2.Costs of the application awarded to the Defendant

Authorities

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Cases cited (3)

  • Giella –vs- Cassman Brown & Company Ltd
    (1973) EA 358
  • Mrao Limited –vs- First American Bank & 2 Others
    (2003) KLR 125
  • Nguruman Limited –vs- Jan Bonde Nielsen & 2 Others
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction of the High Court (Environment and Land Court) over a land dispute and interlocutory injunction application

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, "Peponi Hotel Limited v Ali Ahmed Mohamed [2019] KEELC 4253 (KLR)", Case Analysis (2019). Notice of Motion dated 7th August 2017 (suit filed at Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4253/eng@2019-03-14

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