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ELCAllowedNot stated in judgment· [2020] KEELC 53 (KLR)

Nyanuaya Yiene Jacob & 3 others v Kisumu County Government & 4 others [2020] KEELC 53 (KLR)

Environment and Land Court
29 January 2020
AOA. O. Ombwayo
1,135 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kisumu court temporarily blocked the county government from developing land owned by Jua Kali artisans, showing registered title documents can stop public projects.

What this practically means

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Executive summary

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The plaintiffs, registered trustees of Kisumu Center Jua Kali Artisan Association, moved the Environment and Land Court at Kisumu for a temporary injunction against the Kisumu County Government, the City Manager, the Commissioner Kisumu County and the Attorney General. They sought to restrain the defendants from interfering with, disposing of, auctioning, selling, encroaching upon, trespassing on, erecting structures on or otherwise dealing with Kisumu Municipality Block 6/517 pending the hearing of the suit. They asserted ownership of the parcel and alleged the defendants intended to construct a permanent structure - a market complex - on it, amounting to trespass. There were no replying affidavits from the respondents. Ombwayo J set out the classic Giella v Cassman Brown conditions for an interlocutory injunction, supplemented by authority including Mrao Ltd v First American Bank on the definition of a prima facie case and Nguruman Limited v Jan Bonde Nielsen on the sequential application of the principles. The court found a prima facie case established by the certificate of lease dated 20th June 2016 showing the plaintiffs as registered proprietors, together with a rent clearance certificate. The parcel was found to be the source of the plaintiffs' livelihood, so damages would be inadequate, and the balance of convenience favoured the plaintiffs who were in possession. A temporary injunction was granted in the terms sought, with costs of the application in the cause, pending the hearing of the suit.

Key legal issues

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01

Whether the plaintiffs established a prima facie case

Holding

Yes - the certificate of lease shows the plaintiffs are registered proprietors of the suit property

Reasoning

The court found the certificate of lease issued on 20th June 2016 demonstrates the plaintiffs are registered proprietors of the suit parcel, and they were issued a rent clearance certificate. This established an apparent right over the property which the defendants' intended development would infringe, satisfying the first Giella principle.

p. 2
02

Whether the plaintiffs would suffer irreparable harm

Holding

Yes - the suit parcel is the source of the plaintiffs' livelihood and damages would not be adequate

Reasoning

The court found the suit parcel is the source of the plaintiffs' livelihood, so damages would inadequately compensate their loss if evicted. Since the plaintiffs are in possession, the balance of convenience also favours granting the injunction pending full hearing.

p. 2

Legal principles established

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  • The conditions for granting an interlocutory injunction are a prima facie case with probability of success, irreparable injury not adequately compensable by damages, and, if in doubt, the balance of convenience
  • If a prima facie case is established, the court must further be satisfied the injury is irreparable; if no prima facie case, the other limbs need not be considered

Court orders

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  1. 1.Temporary injunction restraining the defendants, their servants, employees and representatives from further interfering, disposing, auctioning and or selling, encroaching, trespassing, erecting structures or in any other way dealing with Kisumu Municipality Block 6/517 pending the hearing of the suit
  2. 2.Costs of the application in the cause

Authorities

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Cases cited (9)

  • Giella vs Cassman Brown & Co., Ltd.
    [1973] E.A. 358
  • E.A. Industries vs Trufoods
    [1972] E.A. 420
  • R. J. R. Macdonald vs Canada (Attorney General)
  • Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others
    [2016] eKLR
  • American Cyanamid Co. vs Ethicom Limited
    (1975) AER 504
  • Mrao Ltd vs First American Bank of Kenya and 2 others
    (2003) KLR 125
  • Moses C. Muhia Njoroge & 2 others vs Jane W Lesaloi and 5 others
    (2014) eKLR
  • Kenleb Cons Ltd vs New Gatitu Service Station Ltd & another
    (1990) eKLR
  • Nguruman Limited vs Jan Bonde Nielsen & 2 others
    [2014] eKLR
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, "Nyanuaya Yiene Jacob & 3 others v Kisumu County Government & 4 others [2020] KEELC 53 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/53/eng@2020-01-29

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