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ELCDismissedNot stated in judgment· [2021] KEELC 2179 (KLR)

Jackson Kipngeny Kipkurere & another v David Busienei & another [2021] KEELC 2179 (KLR)

Environment and Land Court
18 August 2021
MOM. A. Odeny
3,102 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a request to force neighbours to remove a fence blocking an access road, saying such drastic interim orders need special circumstances.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (M. A. Odeny, J) determined a notice of motion dated 8th February 2021 in which the plaintiffs sought a mandatory interlocutory injunction compelling the defendants to remove a barbed wire fence and structures allegedly enclosing an access road reserve separating parcels SOY/KIPSOMBA BLOCK 12 (KIPSOMBA)/27, 98 & 133, with enforcement through the OCS Soy Police Station under the supervision of the County Surveyor, Uasin Gishu. The plaintiffs, a couple whose matrimonial home stands on parcel 27, contended that on about 19th January 2021 the defendants fenced off the road reserve, denying them access, and relied on a County Surveyor's report of 25th January 2021 said to comply with Sections 18 and 19 of the Land Registration Act. The defendants opposed, arguing that no public road was shown on the 1996 Survey of Kenya map, that no application had been made to the District Roads Board under Sections 9 and 10 of the Public Roads and Roads of Access Act, Cap. 399, and that implementation of the Surveyor's report would breach their constitutional property rights under Article 40. The court framed the question as whether special circumstances existed justifying a mandatory interlocutory injunction. Applying Kenya Breweries v Okeyo, Nation Media Group v Mwau and Shepherd Homes v Shadahu, it held that a higher standard than for a prohibitory injunction applies; the applicants' mere averment of a blocked access road, on conflicting affidavit evidence and with the procedure for implementing the Surveyor's report contested, did not meet that standard. Granting the orders would summarily determine the suit. The application was dismissed with each party bearing their own costs, and the applicants were directed to fast-track the main suit.

Key legal issues

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01

Whether special circumstances existed to grant a mandatory interlocutory injunction

Holding

No special circumstances demonstrated; the application fails.

Reasoning

The court restated the test from Kenya Breweries, Nation Media Group and Shepherd Homes: a mandatory injunction at interlocutory stage requires exceptional, special circumstances and a higher degree of assurance than a prohibitory injunction. The applicants' mere averment that the road reserve was fenced off, on conflicting affidavit evidence and with the procedure for implementing the Surveyor's report contested, was insufficient. Granting the orders would summarily determine the whole suit.

p. 4
02

Whether the court has jurisdiction over the dispute

Holding

Jurisdiction was argued by the applicants as properly founded, but the court decided the matter on the injunction test rather than expressly ruling on jurisdiction.

Reasoning

The applicants contended the County Surveyor's report of 25th January 2021 complied with Sections 18 and 19 of the Land Registration Act, giving the ELC jurisdiction. The respondents countered that no application had been made to the District Roads Board under the Public Roads and Roads of Access Act. The court did not resolve this as a separate issue but disposed of the application on the mandatory injunction standard.

p. 4

Legal principles established

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  • A mandatory interlocutory injunction requires a higher standard than a prohibitory injunction and will not issue absent special circumstances in clear cases
  • Mere averment that an access road has been blocked, without clear explanation, does not justify a mandatory interlocutory injunction

Court orders

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  1. 1.Application dismissed
  2. 2.Each party to bear their own costs
  3. 3.Applicants directed to fast track the hearing of the main suit

Authorities

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Legislation

  • Land Registration ActSections 18, 19, 98
  • Public Roads and Roads of Access Act, Cap. 399Sections 2, 9(1), 10(1)
  • Land ActSection 140
  • Constitution of Kenya, 2010Article 40

Cases cited (13)

  • Esther Wanjiku Mwangi & 3 Others v Wambui Ngarachu
    [2017] eKLR
  • Rahab Mumbi Kimani v Damaris Wanjiku Gachoka
    [2018] eKLR
  • Kenya Breweries Ltd & Another v Washington O. Okeyo
    (2002) eKLR
  • Magnate Ventures Limited v Eng. Kenya Limited
    (2009) eKLR
  • Katangi Developers Limited v Attorney General & Another
    [2019] eKLR
  • Kenya Pipeline Company Limited v Raiply Wood (K) Limited
  • Silipet Properties Limited & Another v Chege Mwaura & Another
    (2017) eKLR
  • Locabail International Finance Ltd v Agroexport and Others
    (1986) 1 All ER 901
  • Dellian Langata Limited v Symon Thuo Muhia, Mary Njoki Thuo, Agricultural Finance Corporation, Nairobi City Council & Council of Legal Education
    (2018) eKLR
  • Johnbosco Muinde Kamali & 5 others v Stephen Katili & Another
    (2019) eKLR
  • Shariff Abdi Hassan v Nadhif Jama Adan
    [2006] eKLR
  • Nation Media Group & 2 others v John Harun Mwau
    [2014] eKLR
  • Shepherd Homes Ltd v Shadahu
    (1971) 1 Ch 34
Jurisdiction invoked
Article 162(2)(b) Constitution / Environment and Land Court Act (implied); jurisdiction contested under Sections 18 and 19, Land Registration Act No. 3 of 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jackson Kipngeny Kipkurere & another v David Busienei & another [2021] KEELC 2179 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2179/eng@2021-08-18

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