Kitambala Marcellin & another v Kapiti Dairies Limited [2021] KEELC 1415 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed East African University's injunction over a disputed boundary, struck out nothing, and sent the trusteeship question to the High Court.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs' suit should be struck out as an abuse of process
Suit not struck out; the Plaint raises issues within ELC jurisdiction and failure to file a trustees' authority is curable procedurally
Although the court concurred that boundary disputes must first go to the Land Registrar under Section 18 of the Land Registration Act, the Plaint also raises trespass, ownership declaration, injunction and compensation claims, which fall under Section 13 of the Environment and Land Court Act. The absence of a trustees' authority is a procedural technicality curable before hearing, guided by Article 159(2)(d) and the oxygen principles, and striking out should be sparingly exercised.
Whether the Plaintiffs established a prima facie case for temporary injunction
Yes; a prima facie case with probability of success was demonstrated
Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, the court noted that the Defendant did not deny that the university owns the suit land, nor did it controvert the averments that it destroyed the fence. The Land Registrar's Report showed an apparent infringement of the Plaintiffs' rights, warranting the grant of an injunction.
Irreparable harm and balance of convenience
Plaintiffs will suffer irreparable harm not compensable by damages and balance of convenience favours them
Referring to Nguruman Ltd v Jan Bonde Nielsen, the court found the Plaintiffs' injuries demonstrable and not speculative, particularly since the Defendant did not deny destroying the fence. On the materials presented, the balance of convenience tilted in favour of the Plaintiffs as representatives of the owner of the suit land.
Legal principles established
#- Striking out of pleadings is a power to be exercised sparingly and only in the clearest of cases
- Justice is administered without undue regard to procedural technicalities under Article 159(2)(d)
- Boundary disputes must first be determined by the Land Registrar under Section 18 of the Land Registration Act
Court orders
#- 1.Plaintiffs' Notice of Motion application dated 11th June 2018 allowed
- 2.Defendant's Notice of Motion application dated 30th August 2018 disallowed
- 3.Defendant's Preliminary Objection dated 28th July 2018 disallowed
- 4.Costs in the cause
- 5.Parties directed to institute proceedings in the High Court to determine the trusteeship of the East African University
- Jurisdiction invoked
- Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitambala Marcellin & another v Kapiti Dairies Limited [2021] KEELC 1415 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1415/eng@2021-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.