Charles Wahome Kiboi v Kenya National Highway Authority & another [2021] KEELC 1806 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant established a prima facie case with a probability of success
The Applicant, as registered owner of the suit parcel, established a prima facie case; evidence of attempted demolition is prima facie proof the substratum of the suit property would be interfered with
The court applied the Giella test. The Applicant's certificate of title, absent contrary evidence, established beneficial interest. Although the 1st Defendant denied the parcel was within the road project and the 2nd Defendant denied any demolition, evidence of an attempted demolition or marking of the property constituted prima facie proof of threatened interference. Whether the land encroached on the road reserve was a matter for the full trial.
Whether the Applicant would suffer irreparable injury not compensable by damages
Demolition or interference would change the landscape of the area and cause irreparable loss not adequately compensable by damages
Relying on Olympic Sports House Ltd v School Equipment Centre Ltd, the court reasoned that a party cannot be condemned to take damages in lieu of a crystallised right protectable by injunction. Demolition would irreversibly alter the suit property pending trial.
Balance of convenience
The balance of convenience tilts in favour of maintaining the status quo, meaning no demolition until the suit is heard and determined
Following Virginia Edith Wambui v Joash Ochieng Ougo, where there are serious conflicts of facts, the status quo should be maintained until trial. The Applicant had not fully established who placed the 'X' mark, but that evidence could be adduced at the hearing of the main suit.
Legal principles established
#- In an interlocutory application, the court makes no conclusive or definitive findings of fact or law on contradictory affidavit evidence
- Where there are serious conflicts of facts, the trial court should maintain the status quo until the dispute is decided at trial
Court orders
#- 1.Interim injunction restraining the Defendants/Respondents, their agents, servants and employees from entering into, alienating or taking possession of parcel Dagoretti/Kinoo/3954, and from destroying, demolishing or in any way interfering with the buildings erected thereon, pending the hearing and determination of the suit
- 2.Costs of the application to be borne by the Defendants/Respondents
- Jurisdiction invoked
- Order 40 Rules 1 & 4, Order 51 Rules 1 and 3 of the Civil Procedure Rules, Sections 3A, 63(c) and (f) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Wahome Kiboi v Kenya National Highway Authority & another [2021] KEELC 1806 (KLR)", Case Analysis (2021). Not stated in the judgment (Environment and Land Court, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1806/eng@2021-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.