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ELCPartially AllowedNot stated in judgment (Bungoma Environment and Land Court Appeal)· [2020] KEELC 1216 (KLR)

Catherine Nasimiyu Khisa and Gladys Nakhumicha Khisa (Suing as the Administrators and Legal Representatives of the Estate of the late Shadrack Khisa Naliakho – Deceased) v Jacob Wangila Wanyama & another [2020] KEELC 1216 (KLR)

Environment and Land Court
30 September 2020
BOBoaz N. Olao
4,981 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that ongoing construction on disputed land must stop during the case, because money cannot fix changed land.

What this practically means

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Executive summary

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The Appellants, administrators of the Estate of Shadrack Khisa Naliakho, registered proprietors of East Bukusu/South Kanduyi/6033, sued the Respondents, proprietors of the adjacent parcel 9332, alleging encroachment and construction of a storey building on the suit property. Their Notice of Motion under Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules for a temporary injunction pending trial was dismissed by Hon. E. N. Mwenda (Senior Resident Magistrate, Bungoma) on 2nd December 2019, precipitating this appeal on thirteen grounds. Boaz N. Olao J, sitting in the Environment and Land Court at Bungoma, confined himself to the interlocutory question whether the Magistrate properly exercised his discretion, applying the tests in United India Insurance, Mbogo v Shah and Newbold P. The trial Magistrate had found a prima facie case but held that any injury was compensable in damages, reasoning that the Respondents could be ordered to remove the building and pay mesne profits. The Court held this was a misdirection: where trespass is alleged it is no answer to an injunction application that damages are available (JAJ Super Power), and an injunction may issue where the act would destroy the subject matter (Halsbury's). Ongoing construction would change the whole character of the 0.02 Ha suit property and waste it pending trial. The appeal was allowed: the dismissal was set aside and an injunction granted in terms of prayer 3, qualified to permit the Respondents to enter solely to cover the incomplete structure against rain; the trial was to be expedited and determined within twelve months under Order 40 Rule 6; the Appellants were awarded costs of the appeal.

Key legal issues

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01

Interference with a trial court's discretion on appeal

Holding

An appellate court will not interfere with a discretionary decision unless the judge misdirected himself in law, misapprehended the facts, took into account or failed to take into account relevant considerations, or the decision is plainly wrong

Reasoning

The Court applied the tests in United India Insurance v EA Underwriters, Mbogo v Shah and Newbold P's formulation to an appeal from a Magistrate's Court. Having found the trial Magistrate misdirected himself in law, misapprehended the facts and took into account considerations he should not have, resulting in a plainly wrong decision, the Court was entitled to interfere with the dismissal of the injunction application.

p. 5
02

Irreparable injury in land encroachment cases

Holding

Ongoing construction on land subject of a suit constitutes actual, substantial and demonstrable injury; compensation by damages is not an adequate answer where construction would alter the character of the property

Reasoning

Relying on Nguruman, Ernest Muriuki Mungai, Halsbury's Laws and JAJ Super Power Cash and Carry, the Court held that if construction proceeds the property will be wasted and its character changed, so the trial court erred in taking a restricted view that damages, removal costs and mesne profits would suffice. Wastage of property pending trial is an injury Order 40 Rule 1 is meant to prevent.

p. 5
03

Prima facie case

Holding

Having found title documents, survey reports and a Boundary Determination Report supporting the Appellants, the trial Magistrate rightly found a prima facie case - a right apparently infringed calling for rebuttal

Reasoning

The Court adopted the Mrao Ltd definition and noted the trial Magistrate had himself found a prima facie case in paragraph 11 of his ruling, which required the Respondents to rebut. The dispute centred on contested rights over the portion of the suit property where construction was ongoing.

p. 5

Legal principles established

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  • Where trespass is alleged, it is no answer to an injunction application to claim that the alleged acts of trespass can be compensated in damages
  • It is not an inexorable rule that where damages can be awarded an injunction should not issue, as that would favour those rich enough to pay damages
  • It is preferable to preserve property in dispute pending final determination of ownership; an injunction may issue where the act would destroy the subject matter
  • The Giella test for temporary injunction must be considered sequentially

Court orders

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  1. 1.The order dismissing the Appellants' application dated 8th November 2019 in terms of prayer 3 is set aside and substituted with an order allowing the application in terms of prayer 3
  2. 2.The Respondents, their servants, agents or contractors are allowed to enter the suit property solely to place a canopy or other suitable cover such as iron sheets to protect the structure from adverse weather conditions such as rain
  3. 3.The trial of the suit shall be expedited and determined within twelve (12) months from the date of delivery of the judgment in keeping with Order 40 Rule 6 of the Civil Procedure Rules
  4. 4.The Appellants are awarded costs of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2, 4 and 6
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (11)

  • UNITED INDIA INSURANCE CO. LTD V. EAST AFRICAN UNDERWRITERS (KENYA) LTD
    1985 E.A 898
  • MBOGO V. SHAH
    1968 E.A. 93
  • GIELLA V. CASSMAN BROWN LTD
    1973 E.A 358
  • FILMS ROVER INTERNATIONAL LTD V. CANNON FILM SALE LTD
    1986 3 ALL. E.R 772
  • NGURUMAN LTD V. JAN BONDE NIELSEN & OTHERS
    C.A. Civil Appeal No 77 of 2012
  • MRAO LTD V. FIRST AMERICAN BANK OF KENYA LTD & OTHERS
    2003 KLR 125
  • ERNEST MURIUKI MUNGAI V. GICHUGU CONSTITUENCY DEVELOPMENT FUND & ANOTHER
    2017 eKLR
  • HALSBURYS LAWS OF ENGLAND 3RD EDITION VOL 21
    page 366
  • JAJ SUPER POWER CASH AND CARRY LTD V. NAIROBI CITY COUNCIL & OTHERS
    C.A Civil Appeal No 111 of 2002
  • WAITHAKA V. INDUSTRIAL & COMMERCIAL DEVELOPMENT CORPORATION
    2001 KLR 374
  • MOHAMED V. COMMISSIONER OF LAND & FOUR OTHERS
    KLR (E & L) 217
On appeal from
Senior Resident Magistrate's Court, Bungoma
Not stated
Jurisdiction invoked
Appellate jurisdiction over appeals from the Magistrate's Court (Environment and Land Court); appeal from an interlocutory ruling in a land dispute

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Catherine Nasimiyu Khisa and Gladys Nakhumicha Khisa (Suing as the Administrators and Legal Representatives of the Estate of the late Shadrack Khisa Naliakho – Deceased) v Jacob Wangila Wanyama & another [2020] KEELC 1216 (KLR)", Case Analysis (2020). Not stated in judgment (Bungoma Environment and Land Court Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1216/eng@2020-09-30

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