Nyali Beach Cycads Limited v Francis Kamau Guchu & 3 others [2021] KEELC 3868 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Threshold for an interlocutory mandatory injunction
A higher threshold than for prohibitory injunctions applies; it may be granted only in clear cases or where special circumstances exist, and the court must feel a high sense of assurance
The court adopted the test from Halsbury's Laws and Locabail International Finance Ltd v Agro Export as approved by the Court of Appeal in Kenya Breweries Ltd v Washington Okeyo and Maher Unissa Karim v Edward Oluoch Odumbe. Before granting, the court must feel a high sense of assurance the injunction would be rightly granted at trial. The court found this threshold met on the unusual facts of the case.
Binding effect of the consent order and survey report in Yatta SRMCC No. 1 of 2011
The Defendants, including the 2nd Defendant's late father, recorded a consent admitting the Plaintiff's claim, pursuant to which a survey report showed occupation of L.R. No. 3565 and evictions followed; the consent was never set aside and binds the Defendants
The court noted the 1st Defendant did not dispute recording the consent, and the 2nd Defendant admitted his family was evicted and their houses demolished in 2011 pursuant to it, yet never sought to set it aside. Their judicial review challenge in Machakos HC Misc. No. 155 of 2011 (JR) was dismissed for want of prosecution in 2015. The consent order therefore stands.
Maintainability of the adverse possession defence
The adverse possession claim is an afterthought and not maintainable at this stage because it was never raised in the previous Thika or Yatta suits
The court observed that neither the 2nd Defendant's late father in the Thika and Yatta cases, nor the Defendants in earlier proceedings, raised adverse possession. The claim of occupation since 1936 was first raised in response to the present application, making it an afterthought given the prior consent and eviction which were never challenged.
Legal principles established
#- A mandatory injunction may be granted at the interlocutory stage where there are special circumstances, the case is clear, or the defendant attempts to steal a match on the plaintiff
- It is the trespasser who should give way pending determination of a dispute over land
- Where a party agrees by consent order to vacate land, the court will not aid that party in continuing occupation; the consent order constitutes special circumstances justifying a mandatory injunction
Court orders
#- 1.Pending the hearing and determination of the suit, the Defendants, their servants, agents and/or whomsoever are compelled to remove all structures erected on L.R. No. 3565 and all parties claiming title under them to vacate the property on the basis of the survey report dated 18th April, 2011 within 30 days of the date of the Ruling
- 2.The Officer Commanding Kikomba Police Post to enforce the Court orders issued
- 3.The Defendants to pay the costs of the Application
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land and environment disputes); interlocutory application under the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyali Beach Cycads Limited v Francis Kamau Guchu & 3 others [2021] KEELC 3868 (KLR)", Case Analysis (2021). ELC Case (Machakos) – Application dated 16th September, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3868/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.