Albanus Harrison Mutemwah v Tekela Laibati Walya & Priscilar Kavuli Wambua (Environment & Land Case 16 of 2019) [2020] KEELC 3347 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a prima facie case with probability of success was established
Yes - the Applicant's actual possession of the disputed portion was not controverted, and the 2nd Defendant did not dispute being seen uprooting crops and cutting down trees.
The court accepted that although the 1st Defendant is the registered owner of the parcel, the Applicant's actual possession of the portion he claims to have purchased from Peter J.K Walya was undisputed. The 2nd Defendant did not dispute the deposition that she was the person seen uprooting crops and cutting down trees. On these facts the court found a prima facie case with probability of success.
Whether damages would be an adequate remedy
No - the Applicant's long occupation and development of the land over 20 years carry sentimental value that cannot be adequately compensated by damages.
The court agreed with the Applicant that his long occupation and subsequent developments on the portion, together with the sentimental value attached to it, demonstrate irreparable injury not adequately compensable by an award in damages.
Where the balance of convenience lies
It tilts in favour of the Plaintiff/Applicant.
Arising from the findings on prima facie case and irreparable injury, the court held it was not in doubt as to which side the balance of convenience tilts, finding it in favour of the Plaintiff/Applicant, who has been in possession and developing the land since 1992.
Legal principles established
#- The Giella v Cassman Brown principles govern the grant of interlocutory injunctions.
Court orders
#- 1.An injunction restraining the Defendants/Respondents, their servants, agents and anyone claiming under them from entering, trespassing or interfering with any plant or structure on the Applicant's portion of land parcel No. Kitaingo/Uvete/1519 (prayer 2)
- 2.An order that the Officer Commanding Station, Kilome Police Station do enforce the interim orders (prayer 4)
- 3.The Defendants/Respondents to bear the costs of the application (prayer 5)
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63 of the Civil Procedure Act; 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, "Albanus Harrison Mutemwah v Tekela Laibati Walya & Priscilar Kavuli Wambua (Environment & Land Case 16 of 2019) [2020] KEELC 3347 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3347/eng@2020-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.