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ELCDismissedNotice of Motion dated 5th July 2018 (suit over Mombasa/Ziwa La Ngombe Scheme/1759 and 1760)· [2019] KEELC 4466 (KLR)

Paul Carolus Ofwona v Margaret Muthoni & 3 others [2019] KEELC 4466 (KLR)

Environment and Land Court
11 February 2019
1,682 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The 1st to 3rd defendants moved the court by Notice of Motion dated 5th July 2018 seeking an interlocutory mandatory injunction compelling the plaintiff, Paul Carolus Ofwona, to demolish and remove a metal structure/garage allegedly encroaching on their parcel Mombasa/Ziwa La Ngombe Scheme/1759, on pain of demolition by the defendants. They relied on a joint survey conducted on 18th April 2018 pursuant to a court order, which found the plaintiff's welding shade encroached on Plot 1759 by 4.0m x 3.0m, and complained of nuisance and health hazards from overgrown vegetation and vermin. The plaintiff opposed the application as an abuse of process, pointing out that the dispute concerned a boundary portion claimed by both parties and leased by him to a tenant who built the garage in about 2007. He relied on the court's ruling of 9th November 2016 directing that the disputed portion remain unused/unoccupied until the suit was determined, a ruling never reviewed or set aside, and contended that granting demolition would conclusively determine the suit at an interlocutory stage. He also disputed the survey findings. The court held that the standard for an interlocutory mandatory injunction, per Locabail International Finance Ltd v Agro Export, is higher than that for a prohibitory injunction under Giella v Cassman Brown. Although the survey found encroachment, the subsisting status quo ruling had not been disturbed, and demolition could still be effected if the applicants succeeded at trial. The application was dismissed with costs to the plaintiff on 11th February 2019.

Key legal issues

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01

Whether an interlocutory mandatory injunction should issue to compel demolition of an encroaching structure

Holding

No; the application was dismissed because the case was not unusually strong and clear, and there was a subsisting order leaving the disputed portion unused/unoccupied pending trial.

Reasoning

The court applied Locabail International Finance Ltd v Agro Export, holding that a higher standard than for prohibitory injunctions applies. Although the joint survey found encroachment, both parties claim ownership of the disputed portion, the plaintiff disputes the survey findings, and the ruling of 9th November 2016 directing the portion remain unused/unoccupied had never been reviewed or set aside. Demolition could still be carried out if the applicants succeed at trial.

p. 2
02

Effect of the joint survey report and the earlier status quo ruling

Holding

The survey findings did not displace the subsisting ruling of 9th November 2016, which remained binding until the suit is determined.

Reasoning

The 7th December 2017 order only directed the County Surveyor to survey and file a joint report; it made no reference to demolition or to the 9th November 2016 ruling. Since that ruling had not been appealed, reviewed or set aside, the disputed portion had to remain unused/unoccupied until the suit was heard and determined, so the applicants could not obtain demolition at an interlocutory stage.

p. 2

Legal principles established

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  • A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and only in a clear case, on a higher standard than a prohibitory injunction.
  • The standard for an interlocutory mandatory injunction is higher than that for a prohibitory (temporary) injunction as set out in Giella v Cassman Brown.

Court orders

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  1. 1.The notice of motion dated 5th July 2018 is dismissed
  2. 2.Costs of the application to the plaintiff

Authorities

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Cases cited (2)

  • Giella –v- Cassman Brown & Co. Ltd
    (1973) EA 358
  • Locabail International Finance Ltd. –v- Agro Export & Another
    (1986) 1 ALL ER 901
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute concerning land parcel Mombasa/Ziwa La Ngombe Scheme/1759

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, "Paul Carolus Ofwona v Margaret Muthoni & 3 others [2019] KEELC 4466 (KLR)", Case Analysis (2019). Notice of Motion dated 5th July 2018 (suit over Mombasa/Ziwa La Ngombe Scheme/1759 and 1760). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4466/eng@2019-02-11

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