Ruth Wakapa & 2 others v Mburu Gathiori Nduati & another [2020] KEELC 2791 (KLR)
The bottom line
#A Kenyan land court refused both sides' injunctions in a boundary dispute, sending the access road question to the Land Registrar for determination.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established a prima facie case for an interlocutory injunction
They did not; their equitable conduct betrayed them and they failed to disclose material facts, so the first Giella condition failed and the other conditions need not be considered
It was not disputed the parties were registered proprietors of neighbouring parcels. However, the National Land Commission had in March 2014 written to the 1st Plaintiff to cease encroaching on a road reserve, a boundary dispute had been referred to the Land Registrar, and the 1st Plaintiff's son had been charged for malicious damage to the 1st Defendant's fence. Injunction being an equitable remedy, the Plaintiffs' conduct and non-disclosure of these facts defeated the application at the first hurdle.
Whether the 2nd Defendant was entitled to a mandatory injunction to remove structures from the road reserve
The mandatory injunction was declined because the existence and location of the access road required determination by the District Land Registrar under the Land Act
Although both sides were registered proprietors, there was an unresolved dispute over the access road, and no report from the Land Registrar was presented. The court took judicial notice that a map needed interpretation as to the road's location, a matter within the District Land Registrar's mandate under the Land Act. A mandatory injunction requires a clear case or special circumstances, which were absent pending that determination.
Legal principles established
#- The three Giella v Cassman Brown conditions for an interlocutory injunction are separate, sequential hurdles; if a prima facie case is not established, irreparable injury and balance of convenience need not be considered
- A mandatory injunction will not normally be granted on an interlocutory application absent special circumstances or a clear case
Court orders
#- 1.The Plaintiffs' Notice of Motion dated 1st July 2019 is disallowed.
- 2.The 2nd Defendant's Notice of Motion dated 24th July 2019 is disallowed.
- 3.The parties are directed to present themselves before the District Land Registrar Ngong within 60 days from the date of the order to determine the access road dispute and present a report in court.
- 4.Costs will be in the cause.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act; applications under sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ruth Wakapa & 2 others v Mburu Gathiori Nduati & another [2020] KEELC 2791 (KLR)", Case Analysis (2020). Not stated in judgment (ELC suit, Ngong). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2791/eng@2020-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.