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ELCDismissedNot stated in the excerpt (Notice of Motion dated 20th November, 2019 in a suit over Plot No. MN/III/9476)· [2021] KEELC 3810 (KLR)

Christine Mwende v Daniel Mbogho Kalume & another [2021] KEELC 3810 (KLR)

Environment and Land Court
18 March 2021
CYC.K. Yano
1,306 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court refused to stop an eviction and wall demolition because the buyer could not prove her purchase matched the disputed plot.

What this practically means

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Executive summary

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The plaintiff, Christine Mwende, moved the Environment and Land Court at Mombasa by Notice of Motion dated 20th November, 2019 seeking a temporary injunction to restrain the defendants from intimidating, harassing, evicting her and demolishing a boundary wall on a portion of Plot No. MN/III/9476, pending hearing of the application and suit. She claimed to have purchased 1/8th of an acre from Jones Muchiti Chitahi in 2014 and to run Jambo Jipia School on the land; she denied tenancy to the 1st defendant, who demanded rent arrears and issued an enforcement notice. The 1st defendant, the registered proprietor of Plot 9476/III/MN, countered that the plaintiff was a monthly tenant of structures at Kshs.25,000/= who fell into rent arrears and unlawfully extended the boundary wall, prompting the 2nd defendant's enforcement notice. Applying the established test for interlocutory injunctions - prima facie case, irreparable injury and balance of convenience - the court held that the plaintiff failed to demonstrate a prima facie case: she did not challenge the 1st defendant's title, could not connect her alleged purchase to the suit plot, and had existing orders in her favour in ELC No. 299 of 2013, casting doubt on the need for fresh proceedings. The court further found no irreparable loss since the wall's construction value was ascertainable and damages would suffice. The application was dismissed with costs to the 1st defendant.

Key legal issues

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01

Prima facie case

Holding

The plaintiff failed to establish a prima facie case because she did not challenge or connect her purchase to the 1st defendant's title over the suit plot

Reasoning

The 1st defendant held an unchallenged title to Plot 9476/III/MN. The plaintiff's sale agreement related to a different plot (MN/II/4427, Original 3847/7/MN) and she could not explain the connection between the two. Her claim rested on a lease-like occupation, and she had pre-existing orders in ELC No. 299 of 2013, undermining the present application.

p. 2
02

Irreparable injury

Holding

No irreparable loss; damages adequate

Reasoning

The court held that demolition of the boundary wall would not cause irreparable harm because the cost of construction can be ascertained and any damage quantified in damages. Hence the second Giella limb failed and there was no need for a detailed balance-of-convenience analysis.

p. 2

Legal principles established

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  • The Giella test: an applicant must establish a prima facie case with probability of success, irreparable injury not compensable by damages, and failing which the balance of convenience.

Court orders

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  1. 1.The notice of motion dated 20th November, 2019 is dismissed
  2. 2.Costs of the application to the 1st defendant
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes (interlocutory application in a pending suit)

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, "Christine Mwende v Daniel Mbogho Kalume & another [2021] KEELC 3810 (KLR)", Case Analysis (2021). Not stated in the excerpt (Notice of Motion dated 20th November, 2019 in a suit over Plot No. MN/III/9476). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3810/eng@2021-03-18

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