Mpoyo Ole Pariken v Kisioya Ole Teeka [2020] KEELC 818 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success
Yes - the surveyors' reports pointing to an anomaly in the Defendant's parcel demonstrated an apparently infringed right
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.
Whether the Plaintiff will suffer irreparable harm not compensable by damages
Yes - the ongoing quarrying on seven acres of the Plaintiff's land is an actual, continuing injury not compensable by damages
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.
Where the balance of convenience lies
It tilts in favour of the Plaintiff whose rights have been infringed
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.
Legal principles established
#- 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
#- 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.The OCS Ewuaso Police Station to ensure compliance with the orders
- 3.Costs of the application awarded to the Plaintiff
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.