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ELCPartially AllowedNotice of motion dated 3/6/2020 arising from a plaint dated 3/6/2020· [2020] KEELC 941 (KLR)

Joseph Baker Kiamba Mwaniki v Abdi Godana Dida & 3 others [2020] KEELC 941 (KLR)

Environment and Land Court
16 October 2020
BEB M Eboso
2,331 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court protected a registered landowner from slum-association trespass but refused to order demolition of structures until the full trial.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of LR Nos 209/9002/2 and 209/9002/3 (subdivisions of LR 209/9002) since 1977, sued the defendants, alleged officials of Kibagare Slums Association, for trespass, claiming injunction, eviction, compensation, declarations and general damages. By a notice of motion dated 3/6/2020 he sought interim prohibitory and mandatory injunctions to restrain the defendants from trespassing, erecting structures or committing acts of waste, with police supervision of compliance. The defendants, through a replying affidavit of Abdi Godana Dida, asserted seven decades of farming use of the land, alleged the 1977 allocation was irregular and conditions of allotment unfulfilled, and claimed title by adverse possession. The court framed two questions: whether the Giella v Cassman Brown criteria for an interlocutory injunction were met, and whether a mandatory injunction could issue at the interlocutory stage under the Locabi International Finance criteria as adopted by the Kenyan Court of Appeal. It found the plaintiff's registration undisputed, the permitted user residential rather than agricultural, and the photographs showed organized invasion and erection of unapproved structures with no existing settlement. The plaintiff's property right under Article 40 and Section 25 of the Land Registration Act was protected and damages inadequate. A temporary injunction restraining trespass and construction issued, enforceable by the OCS Spring Valley Police Station, with case-management directions and a December 2020 mention. The mandatory injunction (demolition) was refused, being deferred to the trial. The motion was therefore partially allowed.

Key legal issues

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01

Ordinary interlocutory injunction (Giella criteria)

Holding

The plaintiff established a prima facie case and irreparable harm; a temporary injunction was granted

Reasoning

The plaintiff was the undisputed registered proprietor; photographs showed the defendants invading and erecting unapproved structures with no existing human settlement on the land. The land's permitted user is residential, not agricultural, undercutting the defendants' adverse-possession claim at this stage. No amount of damages could adequately substitute the property right, so the ordinary injunction issued.

p. 3
02

Mandatory injunction at the interlocutory stage

Holding

Refused; deferred to the substantive suit

Reasoning

Applying Locabi International Finance Ltd v Agro-Export as embraced by the Court of Appeal in Nation Media Group v Mwau and Kenya Breweries v Okeyo, a mandatory injunction requires special circumstances, clear cases, and a high sense of assurance. There was no evidence of existing settlement and the respondents deserved their day in court to prove adverse possession.

p. 3

Legal principles established

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  • A registered proprietor's title is protected by Article 40 of the Constitution and Section 25 of the Land Registration Act, and no damages can adequately substitute for that right
  • At the interlocutory stage the court makes no definitive findings on the substantive issues
  • Mandatory injunctions at the interlocutory stage require special circumstances and a high sense of assurance (Locabi criteria)

Court orders

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  1. 1.Pending hearing and determination of the suit, the defendants together with their agents/servants are restrained against trespassing on or erecting any structures on Land Reference Number 209/9002/2 and Land Reference 209/9002/3 situated in Nairobi
  2. 2.The Officer Commanding Spring Valley Police Station shall enforce the above order
  3. 3.The plaintiff shall file and serve a single, bound, paginated and indexed bundle containing pleadings, witness statements and documentary evidence within 15 days
  4. 4.The defendants shall file a similar bundle within 15 days from the date of service of the plaintiff's bundle
  5. 5.The matter to be mentioned in December 2020 for fixing an early hearing date for the main suit

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Land Registration ActSection 25

Cases cited (5)

  • Teresia Njeri Mwangi v Paul Ndungi
    [2014] eKLR
  • Giella v Cassman Brown
    (1973) EA 358
  • Locabi International Finance Limited v Agro-Export and Another
    (1986) All ER 901
  • Nation Media Group & 2 others v John Harun Mwau
    [2014] eKLR (Civil Appeal No 298 of 2005)
  • Kenya Breweries Limited & another v Washington O Okeyo
    [2002] eKLR (Civil Appeal No 332 of 2000)
Jurisdiction invoked
Original civil jurisdiction over land disputes (Environment and Land Court); relief anchored on Article 40 of the Constitution and Section 25 of the Land Registration 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, "Joseph Baker Kiamba Mwaniki v Abdi Godana Dida & 3 others [2020] KEELC 941 (KLR)", Case Analysis (2020). Notice of motion dated 3/6/2020 arising from a plaint dated 3/6/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/941/eng@2020-10-16

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