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ELCDismissedNot stated in the judgment (Plaint dated 10th December 2019)· [2020] KEELC 1193 (KLR)

Lucy Okenyuri Nyakeyo v Kisii County & 2 others [2020] KEELC 1193 (KLR)

Environment and Land Court
22 September 2020
1,501 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kisii landowner who attached a valuation report to her case lost her injunction because the court could price her loss, and public roads weigh heavily in the balance.

What this practically means

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Executive summary

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The Plaintiff, donee of a power of attorney from her father Samwel Nyakeyo Ayego, sued the Defendants contending that the 1st Defendant (County Government of Kisii), through the 2nd and 3rd Defendants, had commenced construction of an urban road in Bonchari sub-county earmarked to pass through land parcel WANJARE/BOMARENDA/1411 without following due process, and sought a temporary injunction to stop demolition of developments on the parcel pending trial. She argued that the compulsory acquisition procedure under Part VIII of the Land Act, including notice and compensation, had not been complied with, and relied on Articles 40, 60 and 61 of the Constitution. The 1st Defendant's Surveyor, Festus Bosire, deposed that construction followed the approved Suneka development plan, that residents had agreed to the road, and that the Plaintiff had encroached on an existing road. Applying Giella v Cassman Brown, the court found the Plaintiff had a prima facie case: title was undisputed, the intention to construct the road was not denied, and no statutory notice under section 107(5) of the Land Act was exhibited. However, the valuation report showed the loss was quantifiable, so the second condition (irreparable injury) failed. On the balance of convenience, the public benefit of the road tilted matters in favour of the 1st Defendant. The application was dismissed with costs in the cause; the main suit remains for trial.

Key legal issues

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01

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

Holding

Yes - title was not disputed, and the 1st Defendant neither denied the intended road construction nor exhibited any statutory notice of compulsory acquisition

Reasoning

The Plaintiff held registered title to the suit property through her father, and the 1st Defendant did not deny ownership or the intention to construct a road through the land. The 1st Defendant did not refute the claim that no notice of compulsory acquisition was served; the list of residents who agreed to the road was not the statutory notice under section 107(5) of the Land Act, and the Plaintiff's name was absent from it. The Plaintiff's fear of unlawful deprivation was therefore well-founded, satisfying the first Giella condition.

p. 2
02

Whether the Plaintiff would suffer irreparable injury not adequately compensable by damages

Holding

No - the loss was quantifiable given the valuation report annexed by the Plaintiff

Reasoning

The Plaintiff attached a valuation report depicting the value of the suit property and the developments on it, showing the loss she was likely to suffer was quantifiable. The court thus failed to find irreparable harm, declining to satisfy the second Giella condition. Issues such as whether the road affects freehold titles or whether the Plaintiff had encroached on an existing road could only be determined at a full hearing.

p. 2
03

Balance of convenience and final disposition of the interlocutory application

Holding

The balance of convenience tilted in favour of the respondent because the road would benefit the public by enabling access to vital services; the application was dismissed

Reasoning

Being unable to conclude that the second Giella condition was met, the court decided the application on the balance of convenience. The road being constructed was intended to benefit the public by enabling access to hospitals, markets and other services, so convenience favoured the respondent. The court was therefore not persuaded the Plaintiff was entitled to an injunction and dismissed the application with costs in the cause.

p. 2

Legal principles established

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  • The principles for granting an interlocutory injunction are those in Giella v Cassman Brown: prima facie case, irreparable injury, and balance of convenience
  • A list of residents who allegedly agreed to road construction does not constitute the statutory notice of compulsory acquisition envisaged under section 107(5) of the Land Act
  • Definition of a prima facie case as per Mrao v First American Bank

Court orders

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  1. 1.The Notice of Motion seeking a temporary injunction is dismissed
  2. 2.The costs of the application shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(2)(3)
  • Constitution of Kenya, 2010Article 60
  • Constitution of Kenya, 2010Article 61
  • Land ActPart VIII; section 107(5)
  • Land Regulations, 2017Regulations 22-23

Cases cited (5)

  • Giella v Cassman Brown & Co Ltd
    (1973) E.A 358
  • Mrao V First American Bank of Kenya Limited
    (2003) eKLR
  • Isaiah Otiato & 6 Others v County Government of Vihiga
    (2018) eKLR
  • Mike Maina Kamau v Attorney General
    (2017) eKLR
  • Gami Properties Ltd v NLC
    (2017) eKLR
Jurisdiction invoked
Article 40, 60 and 61 of the Constitution and Part VIII of the Land Act (invoked in submissions on compulsory acquisition); interlocutory application under civil procedure

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, "Lucy Okenyuri Nyakeyo v Kisii County & 2 others [2020] KEELC 1193 (KLR)", Case Analysis (2020). Not stated in the judgment (Plaint dated 10th December 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1193/eng@2020-09-22

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