Vijay Morjaria v Robert Obwocha & 4 others [2021] KEELC 631 (KLR)
The bottom line
#The Environment and Land Court froze all dealings on a contested Mavoko plot until trial, but refused to order demolition of structures already built on it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant established a prima facie case with a probability of success
Yes. The Applicant attached a copy of the title of the suit land and documents showing acquisition by purchase from Jina Enterprises Limited, and asserted possession. The assertion of possession was uncontroverted. A prima facie case was demonstrated.
The Court applied the Mrao definition of a prima facie case as a genuine and arguable case. The Applicant, as registered owner in possession, showed an apparent right infringed by the 1st Respondent's encroachment and construction, calling for rebuttal. The Respondent having filed no response or submissions, the assertions stood uncontroverted and satisfied the first Giella condition.
Whether the Applicant would suffer irreparable harm not compensable by damages
Yes. The 1st Defendant had encroached, constructed a wall, and might continue construction and subdivide/sell the land to third parties, which damages may not adequately compensate.
The Court found that continued construction by the 1st Respondent on the suit property, coupled with the Applicant's apprehension of subdivision and sale to unsuspecting third parties, would result in loss that an award of damages might not suffice to remedy if the Applicant ultimately succeeded at trial. This satisfied the second Giella condition for prohibitory injunctive relief.
Whether the balance of convenience favoured the Applicant
Yes. The Applicant's assertion of possession since 2012 was not controverted by the Respondents, tilting the balance of convenience in his favour.
Under the third Giella condition, the Court applies the balance of convenience where it is in doubt. The Applicant deponed that he had been in possession of the suit land since 2012 and had erected temporary structures thereon. No contrary affidavit or submissions were filed by any Respondent. Accordingly, the uncontroverted assertion of possession tilted the balance of convenience toward the Applicant.
Whether the Applicant was entitled to the mandatory injunctions (prayers 5 and 10) requiring removal of structures at the interlocutory stage
No. Mandatory injunctions at the interlocutory stage require special circumstances and the clearest of cases; where both parties claim title, trial is necessary before such orders are granted.
Relying on Kenya Breweries Ltd v Washington O. Okeyo and Shariff Abdi Hassan v Nadhif Jama Adan, the Court held that mandatory injunctions should not normally issue at the interlocutory stage absent special circumstances. Since both the Applicant and the 1st Respondent claimed to hold title to the suit property, the legitimacy of the competing titles was a matter requiring full trial, and the material was not so clear as to warrant the mandatory orders without trial.
Legal principles established
#- The conditions for grant of an interlocutory injunction are: prima facie case with probability of success; irreparable injury not adequately compensable by damages; and, where the Court is in doubt, the balance of convenience (Giella v Cassman Brown, applied).
- A prima facie case in a civil application is a genuine and arguable case in which a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party (Mrao v First American Bank of Kenya Ltd, applied).
- In an interlocutory application, the Court is not required to make conclusive or definitive findings of fact or law (Airland Tours & Travels Ltd v National Industrial Credit Bank, applied).
- A mandatory injunction at the interlocutory stage should only be granted in special circumstances and in the clearest of cases, where the Respondent is clearly on the wrong and the ends of justice will be met by granting it without waiting for full trial (Kenya Breweries Ltd v Washington O. Okeyo; Shariff Abdi Hassan v Nadhif Jama Adan, applied).
Court orders
#- 1.An interlocutory injunction restraining the 1st Defendant/Respondent from encroaching, trespassing, evicting, seizing, possessing, erecting fences, erecting structures, transferring, selling, leasing and/or dealing with the Plaintiff's property known as L.R. No. 20901/2 situated in Mavoko Municipality pending the hearing and determination of the main suit
- 2.The 2nd and 3rd Defendants/Respondents restrained from issuing a certificate of title to the 1st Defendant/Respondent or any other person in respect of the suit property pending the hearing and determination of the main suit
- 3.The Director of Survey (4th Defendant/Respondent) restrained from issuing deed plans and any subsequent subdivided deed plans arising from the suit property to the 1st Defendant/Respondent or any other person pending the hearing and determination of the main suit
- 4.The 1st, 2nd, 3rd, 4th and 5th Defendants/Respondents restrained from doing anything with the suit property detrimental to the interests of the Plaintiffs pending the hearing and determination of the main suit
- 5.The OCPD Athi-River Police Station and OCS Mlolongo Police Station to assist in the enforcement of the Court Orders
- 6.Costs of the application to be in the cause
- Jurisdiction invoked
- Articles 162(2)(b) and 165(5)(b) of the Constitution of Kenya, 2010; Section 13 of the Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vijay Morjaria v Robert Obwocha & 4 others [2021] KEELC 631 (KLR)", Case Analysis (2023). ELC Case No. 20283 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/631/eng@2021-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.