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ELCAllowedNotice of Motion dated 15th July 2019 (ELC suit, Malindi)· [2020] KEELC 766 (KLR)

Charles Pinto Arigi v Bonface Kahindi Jembe [2020] KEELC 766 (KLR)

Environment and Land Court
5 November 2020
JOJ.O. Olola
1,275 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ordered a man occupying someone else's registered land to leave within 45 days, or face eviction.

What this practically means

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Executive summary

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The Plaintiff, Charles Pinto Arigi, moved the court by Notice of Motion dated 15th July 2019 seeking a mandatory order of injunction compelling the Defendant, Boniface Kahindi Jembe, to give up vacant possession of Kilifi/Mtwapa/1604 (0.050 Ha) in Mtwapa, Kilifi County, and in default liberty to evict, together with a temporary injunction restraining further entry or interference. The Plaintiff, registered proprietor since 23rd December 1998 after purchasing the land in 1997, alleged the Defendant's encroachment was discovered by the chargee bank's surveyors in 2017, and that the Defendant had agreed in writing on 11th September 2018 to vacate. The Defendant, aged 61, claimed he was born on the land, that it was part of a parcel formerly belonging to Katsopi Chondo Karisa who had consented to his occupation pending sub-division, and denied any settlement agreement. He also cited a related suit, Mombasa ELC Case No. 259 of 2018, which he filed against the Plaintiff. Applying the higher threshold for interlocutory mandatory injunctions from Kenya Breweries Ltd v Washington O. Okeyo and Nation Media Group v John Harun Mwau, the court found the Defendant a recent entrant with no evidence of long occupation or of the claimed consent, and no rightful claim to the land. The court allowed the application in terms of prayers 2 and 3 with costs, giving the Defendant 45 days to hand over vacant possession, failing which the Plaintiff may evict him. Orders were dated, signed and delivered at Malindi on 5th November 2020.

Key legal issues

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Whether the Plaintiff established entitlement to an interlocutory mandatory injunction

Holding

Yes; the Defendant was found to be a recent entrant without rightful claim, justifying the mandatory injunction despite the higher threshold

Reasoning

The court accepted the Plaintiff's registered proprietorship since 23rd December 1998 and found no denial of it. The Defendant's claim of long occupation and consent from Katsopi Chondo Karisa was unsupported by evidence, and he did not show that Kilifi/Mtwapa/1604 corresponded to Kilifi/Mtwapa/447. The court concluded the Defendant was a recent entrant and could not remain on the land merely because trial was pending, meeting the special-circumstances threshold for mandatory relief.

p. 2

Legal principles established

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  • A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases
  • An interlocutory mandatory injunction requires a higher degree of assurance than a prohibitory injunction

Court orders

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  1. 1.Plaintiff's application allowed in terms of prayers Nos. 2 and 3 of the Motion with costs
  2. 2.Defendant to hand over vacant possession within 45 days, failing which the Plaintiff shall be at liberty to evict him

Authorities

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Cases cited (2)

  • Kenya Breweries Ltd & Another –vs- Washington O. Okeyo
    (2002) eKLR
  • Nation Media Group & 2 Others –vs- John Harun Mwau
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land in Kilifi County

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, "Charles Pinto Arigi v Bonface Kahindi Jembe [2020] KEELC 766 (KLR)", Case Analysis (2020). Notice of Motion dated 15th July 2019 (ELC suit, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/766/eng@2020-11-05

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