Marsh View Limited v Benvar Estates Limited [2020] KEELC 208 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to stop a landowner blocking a road because the claimant had another usable access route.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff/Applicant established a prima facie case for an interim injunction based on an alleged easement of right of way
Yes - the claim of an easement, if the road was blocked, discloses an arguable case and apparent infringement calling for rebuttal
The Plaintiff claimed to have used the 15-metre road across the servient land for over 20 years since 1999, claiming an easement under Section 32 of the Limitation of Actions Act. Although the Defendant denied acquisition, the Court held that whether the easement had been acquired is an issue for trial. If the road was blocked, the Plaintiff's right may have been infringed, calling for rebuttal. A prima facie case being an arguable case, the threshold was met.
Whether the Plaintiff/Applicant would suffer irreparable loss if the injunction was not granted
No - the Plaintiff has an alternative access route, so damages are adequate and the loss is not irreparable
The Court held that irreparable loss requires showing no alternative. The Plaintiff admitted an alternative, albeit longer and less direct, route (the Karamaini road) to its property. Since an alternative access route existed, the Plaintiff would not suffer irreparable harm. Under the sequential Nguruman principles, failing the second limb meant the balance of convenience need not be considered and the injunction could not issue.
Legal principles established
#- An applicant for an interlocutory injunction must sequentially establish a prima facie case, irreparable injury, and balance of convenience, with no leap-frogging between the hurdles
- Irreparable loss requires the party to show it has no alternative; an alternative access route defeats the irreparable injury limb
- The question of whether an easement has been acquired under Section 32 of the Limitation of Actions Act goes to the merit of the case and can only be determined at the hearing
Court orders
#- 1.The Notice of Motion Application dated 26th February 2020 is dismissed entirely with costs being in cause
- Jurisdiction invoked
- Not stated in the judgment; interlocutory application within a pending suit under the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marsh View Limited v Benvar Estates Limited [2020] KEELC 208 (KLR)", Case Analysis (2020). Notice of Motion Application dated 26th February 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/208/eng@2020-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.