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ELCDismissedNot stated in the judgment text provided· [2020] KEELC 167 (KLR)

Samuel Nyamori v Francis Abuya [2020] KEELC 167 (KLR)

Environment and Land Court
10 December 2020
AOAntony Ombwayo
1,595 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner in Kisumu lost his bid to stop his neighbour from using disputed property because he relied on rumours instead of solid evidence.

What this practically means

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Executive summary

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By a Notice of Motion dated 27th April 2020, the Defendant in a land dispute over parcel KISUMU/CHIGA/2807 sought an interim injunction restraining the Plaintiff from entering, constructing on, occupying or trespassing on the land, committal of the Plaintiff to civil jail for disobedience of Justice Mwera's orders of 22nd May 2008, attachment and sale of the Plaintiff's property as compensation, and costs. The Defendant, who purchased the parcel in 2006, alleged that in March and April 2020 the Plaintiff and his agents trespassed, destroyed structures, harassed tenants, deposited construction materials, and threatened anyone who challenged him. The Plaintiff/Respondent, joined to the suit after the death of the previous administrator Samuel Otieno Nyamori, denied the allegations, deponing that he was locked down in Nairobi from April 2020 due to COVID-19 restrictions and could not have been in Kisumu, and that his brother confirmed no destruction had occurred. He also argued the application was omnibus, argued the main suit, and duplicated an existing status quo order. The court framed two issues: whether the interim injunction and whether the contempt prayers were merited. Applying Giella v Cassman Brown and Mrao v First American Bank, Ombwayo J held the Defendant failed to establish a prima facie case, as his claims rested on unnamed locals and unsubstantiated allegations. Applying Samuel M. N. Mweru v National Land Commission, the court held the contempt prayers failed for want of proof of service and of the Respondent's involvement. The application was dismissed with costs on 10th December 2020, the judgment being delivered electronically pursuant to COVID-19 directions.

Key legal issues

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01

Whether the Defendant established a prima facie case with a probability of success to warrant an interim injunction

Holding

No. The averments of trespass by the Respondent were based on unnamed locals and unsubstantiated allegations.

Reasoning

The court applied Giella v Cassman Brown and Mrao v First American Bank. The Applicant's claim that unknown persons were agents of the Respondent rested on unnamed locals, and the allegation of threats of violence had no evidential foundation. Evidence, not mere assertion, must show infringement of a right and probability of success at trial.

p. 2
02

Whether the Defendant proved contempt of Justice Mwera's orders of 22nd May 2008

Holding

No. The Applicant failed to demonstrate that the Respondent and/or his agents were the trespassers and failed to produce the notice of breach or proof of service.

Reasoning

Applying Samuel M. N. Mweru v National Land Commission, contempt requires proof of the order's terms, the respondent's knowledge, and non-compliance. The Applicant produced no affidavit of evidence of service on the Respondent or the deceased former administrator, and identification of the culprits was by hearsay and speculation.

Legal principles established

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  • An applicant for an interlocutory injunction must show a prima facie case with a probability of success, irreparable injury not compensable in damages, and failing which the balance of convenience applies (Giella v Cassman Brown)
  • A prima facie case in civil cases is one where a right has apparently been infringed so as to call for an explanation or rebuttal, and it is a standard higher than an arguable case
  • In civil contempt proceedings the applicant must prove (i) the terms of the order, (ii) knowledge of those terms by the respondent, and (iii) failure by the respondent to comply

Court orders

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  1. 1.The Notice of Motion dated 27th April 2020 seeking an interim injunction, committal to civil jail, and attachment and sale of the Plaintiff's property is dismissed
  2. 2.Costs of the application awarded to the Plaintiff/Respondent

Authorities

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Cases cited (5)

  • Giella v Cassman Brown
    [1973] EA 358
  • Mrao v First American Bank Limited & 2 others (also cited as Mrao Ltd v First American Bank of Kenya Ltd & 2 others)
    [2003] eKLR
  • Waithaka v Industrial and Commercial Development Corporation
    [2001] KLR 374
  • Joseph Siro Moisama v HFCK & 3 others
    Nairobi HCC No. 265 of 2007
  • Samuel M. N. Mweru & Others v National Land Commission & 2 others
    [2020] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land parcel KISUMU/CHIGA/2807 (specific statutory basis not cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Samuel Nyamori v Francis Abuya [2020] KEELC 167 (KLR)", Case Analysis (2020). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/167/eng@2020-12-10

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