Dreamrise Limited v Bhagisana Limited; Chief Land Registrar & another (Interested Parties) [2020] KEELC 187 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Prima facie case - existence of an easement of right of way over plot No. 527
The plaintiff established a prima facie easement by prescription; the 1994 subdivision proceeded on the 1986 development approval that conditioned a common access, and no new approval or enforcement of the alleged agreement for a separate gate was shown
The court reasoned that the defendant produced no new subdivision approval, so the 1994 subdivision rested on the 1986 approval conditioned on a common access. Use of the common access continued from 1986 through the defendant's ownership and Mwanzi Road Developers' 20-year occupation without objection. Whether plot No. 528 could alternatively access Mwanzi Road was a matter for trial evidence.
Irreparable harm
Blocking the common access would leave the plaintiff's developed premises on plot No. 528 with no access or visitor parking, collapsing its business, with loss difficult to quantify
The court found the access had been used since 1986 for both access and parking. Blocking it would deprive the plaintiff of access to its fully developed premises and parking, collapsing the business run on plot No. 528, and the loss would be difficult to quantify in damages.
Equitable discretion - conduct of the plaintiff
Although the plaintiff satisfied the Giella conditions, the court declined the injunction on equitable grounds due to the plaintiff's conduct as a neighbour, granting instead a time-limited status quo order
The court held that injunction is an equitable remedy and discretion may be exercised against its grant where inequitable. Letters showed the plaintiff had not been a good neighbour and the defendant was pushed to the limit before issuing the notice, so the injunction was refused in favour of a limited status quo order.
Legal principles established
#- An applicant for an interlocutory injunction must show a prima facie case with a probability of success, irreparable injury not adequately compensable by damages, and failing which the balance of convenience is determined
- An easement of a right of way may be acquired by prescription under section 32 of the Limitation of Actions Act and the entitled party may apply under section 38(3) to be registered as owner of the easement
- An injunction, being an equitable remedy, may be withheld on grounds of the applicant's inequitable conduct even where the substantive grounds for its grant are established
Court orders
#- 1.Pending the hearing and determination of the suit or for a period of 12 months from the date of the ruling, the existing status quo on the continued use of the common access to L.R No. 1870/1/527 and L.R No. 1870/1/528 and all other common amenities shall be maintained on condition that the plaintiff shall make timely payments for any of the shared services and common amenities
- 2.The costs of the application shall be in the cause
- Jurisdiction invoked
- Original civil suit under the Land Registration Act, 2012 and the Limitation of Actions Act (Cap. 22) concerning an easement of right of way; interlocutory application under civil procedure
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dreamrise Limited v Bhagisana Limited; Chief Land Registrar & another (Interested Parties) [2020] KEELC 187 (KLR)", Case Analysis (2020). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/187/eng@2020-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.