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ELCDismissedNot stated in the extract· [2021] KEELC 1516 (KLR)

Jacob Phillip Nyaburi v Nicholas Mbugua Matheri & 15 others; National Land Commission & another (Interested Parties) [2021] KEELC 1516 (KLR)

Environment and Land Court
12 October 2021
2,723 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Plaintiff, registered owner of Kajiado/Kitengela/116 since 31st December 1993, moved the Environment and Land Court by Notice of Motion dated 12th June 2019 seeking a temporary injunction restraining the Defendants and Interested Parties from interfering with his land and resultant subdivisions (the 'suit lands'), a mandatory injunction against interference, and orders compelling the 14th and 15th Defendants to produce surveying reports including a Ruling and to conduct a cadastral survey. He alleged encroachment by owners of neighbouring parcels from 2010 and an unresolved boundary dispute before the Land Registrar, Kajiado, alongside impending compensation negotiations for compulsory acquisition for the Standard Gauge Railway. The 4th Defendant opposed, contending the suit was unmaintainable, that portions of the land had been compulsorily acquired with the Plaintiff compensated under an Award he signed, and that the SGR track and fenced reserve were already in place. The 2nd Interested Party denied any cause of action against it. Applying Giella v Cassman Brown and Mrao Ltd, the court held the Plaintiff failed to establish a prima facie case: he did not exhibit evidence of boundaries, did not specify which parcels encroached, and had come too late as compulsory acquisition, compensation and SGR construction were complete. No special circumstances justified a mandatory injunction under Kenya Breweries v Washington Okeyo. The request to compel production of survey reports was redirected to the Civil Procedure Rules processes. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the Plaintiff established a prima facie case for a temporary injunction

Holding

No prima facie case established; the claim is a boundary dispute and the Plaintiff delayed while compulsory acquisition and construction were completed

Reasoning

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.

p. 3
02

Whether a mandatory injunction should issue at the interlocutory stage

Holding

Declined; the case is not clear and no special circumstances were demonstrated

Reasoning

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.

p. 3
03

Whether the court should refuse the injunction on the 'lower risk of injustice' approach

Holding

The court associated itself with the approach that the court should take whichever course carries the lower risk of injustice

Reasoning

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.

p. 3

Legal principles established

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  • A mandatory injunction is not normally granted at the interlocutory stage absent special circumstances

Court orders

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  1. 1.The Notice of Motion application dated 12th June, 2019 is dismissed
  2. 2.Costs in the cause
  3. 3.The Plaintiff is directed to adhere to the proper legal processes in the Civil Procedure Rules/Act governing production of documents

Authorities

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Legislation

  • Land Registration ActNot specified
  • Civil Procedure Rules/ActNot specified
  • Kenya Gazette special editions of 22nd December, 2016 and 2nd March, 2018Notices of compulsory acquisition

Cases cited (13)

  • Giella Vs Cassman Brown & Company
    (1973) EA 358
  • Arthur Kitonga & 2 others Vs Ken Ngondi & Another
    (2014) eKLR
  • Mrao Ltd Vs First American Bank of Kenya & 2 Others
    (2003) KLR 125
  • Nguruman Limited V Jan Bonde Nielsen & 2 others
    (2014) eKLR
  • Corn Products Kenya Limited V Corn Products Kenya Limited & Another
    (2014) eKLR
  • Amir Suleiman V Amboseli Resort Limited
    (2004) eKLR
  • Stars V Garters Restaurant & Another V National Bank of Kenya Limited
    (2019) eKLR
  • Martha Cherugut Rutoh V Kimibei A Rutoh & 2 others
    (2018) eKLR
  • Julius Kipyegon Koech V Paul Kipngetich Koech
    (2017) eKLR
  • Ntima Housing Cooperative Society Ltd V Housing Finance Company of Kenya Ltd
    (2018) eKLR
  • Films Rover International
    1986 3 All ER 772
  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    CA No. 77 of 2012
  • Kenya Breweries Limited vs. Washington Okeyo
    (2002) EA 109
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.