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ELCDismissedELC Miscellaneous Application — Chamber Summons dated 10th September 2020· [2020] KEELC 500 (KLR)

Josphat Ngare Ndege v Faith Wanjiru Makenda [2020] KEELC 500 (KLR)

Environment and Land Court
20 November 2020
ECE.C. Cherono
1,307 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost her bid to stop a neighbour fencing an access road because she had no surveyor's report proving encroachment and had filed a similar case in another court.

What this practically means

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Executive summary

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This was an interlocutory application by Chamber Summons dated 10th September 2020, brought under Order 39 Rules 1 & 2 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking a temporary injunction restraining the defendant from erecting a fence over the road of access leading to the plaintiff's plots INOI/KAITHERI/1145 and 827, plus costs. The applicant, owner of two adjacent plots in Kaitheri Village, alleged that the respondent had encroached on the road of access by planting gravellia trees and had commenced fencing over it, claiming authority from the area Assistant Chief. The respondent opposed, arguing the application was incompetent and an abuse of process; that a related matter, SRM Misc. Appl. No. 12 of 2014 involving the same parties and the District Surveyor, was pending; that the applicant had no propriety rights over roads of access; and that no encroachment had occurred, with no surveyor's report to prove otherwise. Applying the Giella v Cassman Brown principles, the court held that the applicant failed to establish a prima facie case because encroachment could only be verified by a surveyor and no surveyor's report was annexed; that no irreparable loss was demonstrated; and that the balance of convenience did not favour the applicant, particularly given the pending suit before the subordinate court, which rendered the application impermissible forum shopping. The application was dismissed with costs to the respondent.

Key legal issues

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01

Prima facie case

Holding

Not established; the applicant failed to prove the first Giella principle

Reasoning

The applicant relied on title deeds, photographs and a registry map sheet, but encroachment is a matter that can only be verified by a surveyor. Without a surveyor's report confirming encroachment on the road of access, the allegations cannot be established and the first Giella principle fails.

p. 2
02

Irreparable loss

Holding

Not demonstrated

Reasoning

The applicant did not show what loss could not be compensated by damages. The court adopted the definition in Pius Kipchirchir Kogo v Frank Kimeli Tenai on balance of inconvenience and found the applicant failed to demonstrate the inconvenience he would suffer if the injunction were withheld.

p. 2
03

Balance of convenience and forum shopping

Holding

Balance of convenience does not favour the applicant; a pending suit (SRM Misc. Appl. No. 12 of 2014) on the same subject matter disentitles him to the orders

Reasoning

The respondent annexed a copy of a pending Miscellaneous Application before the Senior Principal Magistrate's Court between the same parties and the District Surveyor. The applicant did not deny its existence in a supplementary affidavit, so the court found the application amounted to forum shopping.

p. 2

Legal principles established

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  • A surveyor's report is prima facie evidence of alleged encroachment on a road of access; without one an applicant fails to establish a prima facie case for an interlocutory injunction
  • Forum shopping is not entertained; where a similar suit is pending before another court, the applicant does not deserve interlocutory orders

Court orders

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  1. 1.The applicant's application dated 10th September 2020 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 39 Rules 1 & 2
  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (2)

  • Giella Vs Cassman Brown Co. Ltd
    (1973) E.A. 358
  • Pius Kipchirchir Kogo Vs Frank Kimeli Tenai
    (2018) eKLR
Jurisdiction invoked
Order 39 Rules 1 & 2 and Order 40 Rule 1 Civil Procedure Rules, Section 3A Civil Procedure Act

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, "Josphat Ngare Ndege v Faith Wanjiru Makenda [2020] KEELC 500 (KLR)", Case Analysis (2020). ELC Miscellaneous Application — Chamber Summons dated 10th September 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/500/eng@2020-11-20

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