Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (Notice of Motion dated 9th November 2020)· [2021] KEELC 3075 (KLR)

Rachel Mwangombe v County Government of Taita Taveta & 2 others [2021] KEELC 3075 (KLR)

Environment and Land Court
25 May 2021
CYC.K. Yano
2,184 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Taveta landowner lost her bid for a court injunction because she could not prove the neighbour was on her plot or that she would suffer irreplaceable loss.

What this practically means

#

Executive summary

#
The plaintiff, Rachel Mwangombe, moved the court by Notice of Motion dated 9th November 2020 seeking, inter alia, a declaration that she is the rightful owner of Plot No 5147 in Taveta, a finding that the 2nd defendant is a trespasser, an order for the 2nd defendant to vacate, and temporary injunctions restraining trespass and any transfer or alienation pending the hearing of the suit. She relied on an application and letter of allotment from the Town Council of Taveta in 2008-2009 and payment of Kshs 108,000/=. The 2nd defendant, through Joseph Kariuki's replying affidavit, denied owning or claiming Plot 5147, producing a Certificate of Lease dated 14th June 2017 for New Taveta/Town/5324 and documents showing it acquired its property legally. Delivering a ruling-style judgment on the single issue whether the application met the threshold for a temporary injunction, the court applied the Giella v Cassman Brown principles as restated in Nguruman. It found the plaintiff had not established a prima facie case because she failed to link the 2nd defendant to her plot, and that she had not demonstrated irreparable injury not compensable by damages, noting she made no development on the plot for 11 years and her allegations of misinformation against the 1st defendant remained unsubstantiated. The application was dismissed with costs to the 2nd defendant.

Key legal issues

#
01

Whether the plaintiff established a prima facie case against the 2nd defendant

Holding

No - the plaintiff failed to demonstrate a connection between her Plot No 5147 and the 2nd defendant's New Taveta/Town/5324

Reasoning

The plaintiff claimed the 2nd defendant trespassed on Plot 5147 while fencing a larger parcel. The 2nd defendant produced a Certificate of Lease for New Taveta/Town/5324 and disclaimed any claim to Plot 5147. The court found the two plots appear distinct and the plaintiff, bearing the burden of proof, adduced no evidence linking the 2nd defendant to her plot.

p. 3
02

Whether the plaintiff demonstrated irreparable injury not compensable by damages

Holding

No - no evidence of loss from the 2nd defendant's alleged occupation was presented

Reasoning

The court reiterated that irreparable injury must be actual, substantial and demonstrable. The plaintiff only asserted generally that she would suffer irreparable injury, without evidence of loss arising from the alleged occupation, having made no development on the plot since allocation in 2009.

p. 3

Legal principles established

#
  • An interlocutory injunction requires the plaintiff to sequentially establish a prima facie case, irreparable injury not compensable by damages, and that the balance of convenience lies in his favour
  • A prima facie case is more than an arguable case and requires evidence of an infringement of a right and probability of success at trial
  • A bare assertion of irreparable injury without evidence does not suffice; the burden is on the plaintiff to demonstrate the nature and extent of the injury

Court orders

#
  1. 1.The Notice of Motion dated 9th November 2020 is dismissed
  2. 2.Costs of the application awarded to the 2nd defendant

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 40 Rule 1; Order 51 Rules 1 and 2

Cases cited (7)

  • Giella vs Cassman Brown & Company Ltd
    (1973) EA 358
  • Barclays Bank of Kenya Ltd v Banking, Insurance & Finance Union (Kenya)
    [2019] eKLR
  • Nguruman Limited vs Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Kenya Commercial Finance Co. Ltd vs Afraha Education Society
    [2001] Vol. 1 EA 86
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Habib Bank Ag Zurich vs Eugene Marion Yakub
    C. A. No. 43 of 1982 (unreported)
  • Charter House Investment Ltd v Simon K. Sang & 3 others
    [2010] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 1, Order 51 Rules 1 and 2 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Rachel Mwangombe v County Government of Taita Taveta & 2 others [2021] KEELC 3075 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 9th November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3075/eng@2021-05-25

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