Jacob Phillip Nyaburi v Nicholas Mbugua Matheri & 15 others; National Land Commission & another (Interested Parties) [2021] KEELC 1516 (KLR)
The bottom line
#A landowner who waited years to challenge encroachment and SGR compulsory acquisition lost his bid for an injunction because the court found he delayed and lacked evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case for a temporary injunction
No prima facie case established; the claim is a boundary dispute and the Plaintiff delayed while compulsory acquisition and construction were completed
Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, the court found the Plaintiff did not exhibit evidence of boundaries of the numerous subdivisions, did not specify which parcels encroached, and did not deny compensation for a portion of the land. The SGR track was already constructed, making an injunction futile. The Land Registrar is mandated under the Land Registration Act to determine unclear boundaries.
Whether a mandatory injunction should issue at the interlocutory stage
Declined; the case is not clear and no special circumstances were demonstrated
Relying on Kenya Breweries Ltd v Washington Okeyo, the court held that a mandatory injunction at interlocutory stage requires special circumstances, a clear case, an act easily remedied, or a defendant stealing a march. Here the 1st to 13th Defendants own their parcels, have permanent structures, and were already compensated by the 1st Interested Party for compulsory acquisition for the SGR, which had been constructed.
Whether the court should refuse the injunction on the 'lower risk of injustice' approach
The court associated itself with the approach that the court should take whichever course carries the lower risk of injustice
Quoting Amir Suleiman v Amboseli Resort Limited as adopted in Martha Cherugut Rutoh, which itself relied on Films Rover International, the court endorsed the principle that where wrong, the court should have chosen the course carrying the lower risk of injustice; here refusing an injunction carried the lower risk given completed acquisition and construction.
Legal principles established
#- A mandatory injunction is not normally granted at the interlocutory stage absent special circumstances
Court orders
#- 1.The Notice of Motion application dated 12th June, 2019 is dismissed
- 2.Costs in the cause
- 3.The Plaintiff is directed to adhere to the proper legal processes in the Civil Procedure Rules/Act governing production of documents
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (not expressly cited in the extract)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacob Phillip Nyaburi v Nicholas Mbugua Matheri & 15 others; National Land Commission & another (Interested Parties) [2021] KEELC 1516 (KLR)", Case Analysis (2021). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1516/eng@2021-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.