Paul Carolus Ofwona v Margaret Muthoni & 3 others [2019] KEELC 4466 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether an interlocutory mandatory injunction should issue to compel demolition of an encroaching structure
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.
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.
Effect of the joint survey report and the earlier status quo ruling
The survey findings did not displace the subsisting ruling of 9th November 2016, which remained binding until the suit is determined.
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 5th July 2018 is dismissed
- 2.Costs of the application to the plaintiff
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.