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ELCDismissedNotice of Motion dated 21st September 2020 (within a Petition, Malindi)· [2021] KEELC 2033 (KLR)

Joel Ogada Angogo & 11 others v Kurawa Industries Limited & 2 others [2021] KEELC 2033 (KLR)

Environment and Land Court of Kenya
15 September 2021
JOJ. O. Olola
1,158 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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The Malindi Environment and Land Court refused to stop a salt company from working land the applicants could not prove they owned, stressing evidence beats assertions.

What this practically means

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Executive summary

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The Petitioners, who describe themselves as having lived on Land Parcel No. 22138 in Kurawa, Kilifi County for several generations, sought an interlocutory injunction restraining Kurawa Industries Ltd (owners of the adjacent parcel No. 13332) from entering, ploughing, digging or otherwise working on their parcel. They alleged encroachment by the Respondent, which was digging dykes and water retention pans for salt harvesting, destroying graves and houses, and frustrating an agreed joint survey by refusing to meet half the survey costs contrary to a consent order of 3rd December 2018. The Respondent opposed the motion as frivolous and an abuse of process, asserting that the Petitioners had no cognizable interest in the parcel, that a prior High Court ruling found no prima facie case, and that its own survey report of 15th January 2021 by the Regional Survey Office confirmed all its operations were within parcel No. 13332. Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, the court held the Petitioners had produced no evidence of ownership or of the extent of any encroachment, and that their amended petition showed they had no recognizable interest in the property, seeking only a declaration to that effect. Their objection to the unilateral survey report failed because the consent order allowed private surveyors. The court found no prima facie case with a probability of success and dismissed the motion with costs to the 1st Respondent.

Key legal issues

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01

Whether the Petitioners established a prima facie case with a probability of success

Holding

No - the Petitioners produced no evidence of ownership of parcel No. 22138 or of the extent of any encroachment, and their own petition sought a declaration that they be declared legal or beneficial owners, showing no recognizable interest presently

Reasoning

The court applied the Giella v Cassman Brown test. The Petitioners claimed generational occupation and encroachment by the Respondent, but annexed no survey report and no proof of title. By contrast, the Respondent produced a Regional Survey Office report of 15th January 2021 confirming all its operations were within parcel No. 13332. The Petitioners' objection that the report was unilateral failed because the consent order of 3rd December 2018 permitted private surveyors in addition to the joint survey. Without proof of a right apparently infringed, no prima facie case was made out and the motion failed.

p. 3
02

Whether the 1st Respondent's unilateral survey report could be relied upon

Holding

Yes - the consent order of 3rd December 2018 allowed each party to privately engage its own surveyors in addition to the joint survey

Reasoning

The Petitioners, in their Further Affidavit of 8th February 2021, attacked the Respondent's survey report as unilateral. The court rejected this objection by reference to the consent order executed on 3rd December 2018, which expressly left parties at liberty to privately engage their own surveyors in addition to the joint survey directed. The report therefore remained a valid evidentiary basis for the Respondent's assertion that its operations were confined to parcel No. 13332.

p. 3

Legal principles established

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  • An applicant for an interlocutory injunction must first show a prima facie case with a probability of success, failing which the court will not consider the other Giella conditions
  • Definition of a prima facie case in civil applications

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 21st September 2020
  2. 2.Costs of the Motion to the 1st Respondent

Authorities

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Cases cited (2)

  • Giella –vs- Cassman Brown & Company Ltd
    (1973) EA 358
  • Mrao Ltd –vs- First American Bank of Kenya & 2 Others
    (2003) KLR 125
Jurisdiction invoked
Original jurisdiction over the petition concerning land parcel No. 22138 in Kilifi County (Environment and Land Court)

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, "Joel Ogada Angogo & 11 others v Kurawa Industries Limited & 2 others [2021] KEELC 2033 (KLR)", Case Analysis (2021). Notice of Motion dated 21st September 2020 (within a Petition, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2033/eng@2021-09-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.