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ELCAllowed· [2020] KEELC 818 (KLR)

Mpoyo Ole Pariken v Kisioya Ole Teeka [2020] KEELC 818 (KLR)

Environment and Land Court
29 October 2020
1,671 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kajiado court stopped a quarry from operating on disputed land because independent survey reports proved an actual, ongoing trespass on the owner's property.

What this practically means

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Executive summary

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The Plaintiff, registered owner of land parcel Kjd/Ewuaso Kedong/2828, moved the court by Notice of Motion dated 2 September 2020 seeking an injunction restraining the Defendant from alienating, interfering with, trespassing on or quarrying the suit land pending the outcome of the suit, and directing the OCS Ewuaso Police Station to ensure compliance. The Plaintiff deposed that the Defendant had trespassed since 2016 and since early 2020 operated a quarry occupying seven acres of his land, confirmed by surveyors' reports. The Defendant, absolute proprietor of parcel Kajiado/Ewuaso Kedong/1443 allocated by the Ewuaso Kedong Group Ranch, denied trespass, asserted his boundaries were ascertained and fixed following a ruling by the District Land Registrar, Kajiado North on 4 June 2019, and contended the Plaintiff had not established a prima facie case. The court framed a single issue: whether the Plaintiff was entitled to an injunction pending the outcome of the suit. Applying the Giella v Casman Brown principles and the definition of a prima facie case in Mrao v First American Bank of Kenya Ltd, the court found the District Surveyor's report and the Geomatics Services Limited report, showing the Defendant's ground acreage greatly exceeded his titled acreage and that the quarry sat in parcels 2826 and 2828, established a prima facie case. On irreparable harm, applying Nguruman Ltd v Jan Bonde Nielsen, the court held the ongoing quarrying on seven acres caused actual injury not compensable by damages. The balance of convenience favoured the Plaintiff. The application was allowed with costs to the Plaintiff.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with a probability of success

Holding

Yes - the surveyors' reports pointing to an anomaly in the Defendant's parcel demonstrated an apparently infringed right

Reasoning

The court considered the Certificate of Title for the Defendant's parcel showing 28.09 hectares and the District Surveyor's report of 25 June 2019 which found that ground occupation and alignment of parcel 1443 did not tally, with ground acreage of 63.72 hectares. The Geomatics Services Limited report indicated the quarry was in parcels 2826 and 2828. These documents were not baseless and pointed to an anomaly, establishing a prima facie case.

p. 2
02

Whether the Plaintiff will suffer irreparable harm not compensable by damages

Holding

Yes - the ongoing quarrying on seven acres of the Plaintiff's land is an actual, continuing injury not compensable by damages

Reasoning

The Plaintiff is the registered proprietor of the suit land, the quarry has encroached on seven acres as per the Surveyor's findings, and the land is reducing in value as quarrying continues. The court applied Nguruman Ltd v Jan Bonde Nielsen on the need to demonstrate actual, substantial and demonstrable injury, and found the alleged injuries were not speculative.

p. 2
03

Where the balance of convenience lies

Holding

It tilts in favour of the Plaintiff whose rights have been infringed

Reasoning

On the evidence presented by the parties, the court found the balance of convenience favoured the Plaintiff, whose rights as registered proprietor were being infringed upon by the Defendant's ongoing quarrying activities encroaching on his land.

p. 2

Legal principles established

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  • Definition of a prima facie case for purposes of interlocutory injunctions
  • Burden on an applicant for injunction to demonstrate irreparable injury that cannot be adequately compensated by damages

Court orders

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  1. 1.Injunction restraining the Defendant by himself, his agents, employees, assigns, Advocates, servants or any other person acting under his instructions from alienating, interfering, trespassing or operating a quarry on land parcel Kjd/Ewuaso Kedong/2828 pending the outcome of the suit
  2. 2.The OCS Ewuaso Police Station to ensure compliance with the orders
  3. 3.Costs of the application awarded to the Plaintiff

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B and 3A
  • Civil Procedure RulesOrder 40 Rule 1 and Order 51 Rule 1

Cases cited (3)

  • Giella Vs Casman Brown
    (1973) E.A 358
  • MRAO VS FIRST AMERICAN BANK OF KENYA LTD & TWO OTHERS
    C.A CIVIL APPEAL No. 39 of 2002 (2003) K.L.R 125
  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    CA No. 77 of 2012
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Mpoyo Ole Pariken v Kisioya Ole Teeka [2020] KEELC 818 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/818/eng@2020-10-29

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