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 excerpt· [2021] KEELC 4045 (KLR)

Josephat Mvoi Mwang’ombe & 8 others v Kenya Wildlife Services [2021] KEELC 4045 (KLR)

Environment and Land Court of Kenya
9 March 2021
MSMunyao Sila
1,020 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Mombasa court let Kenya Wildlife Service finish its electric fence after a joint survey showed no encroachment on the plaintiffs' land, dismissing their injunction bid with costs.

What this practically means

#

Executive summary

#
The plaintiffs, owners of parcels Taita Taveta/Mwachabo Scheme/973, 1113, 1159, 1111 and 111, together with the Alia Community as 9th plaintiff, sued the Kenya Wildlife Service alleging that from March 2019 it unlawfully encroached on their ancestral land and began erecting an electric fence, depriving them of use of the land. By application dated 17 June 2019 they sought a permanent injunction restraining the fence's construction pending determination of the suit, and an order stopping arrests and harassment of community members. KWS opposed through a Senior Warden, Zainab W. Salim, who deposed that the 30km fence was aimed at alleviating human-wildlife conflict and curbing poaching, enjoyed stakeholder support including from the Alia Community, and did not trespass on the plaintiffs' land; she also noted that the 6th and 7th plaintiffs had been arrested for inciting the burning of fencing posts. The court directed a joint survey, conducted in August 2020 and reported in September 2020, which found no encroachment: the fence was 12.6km, 1.3km, 280 metres or 8 metres from the various parcels, and several plaintiffs had themselves encroached onto KWS land. Holding that the plaintiffs had established no prima facie case, no substantial loss, and that the balance of convenience favoured completion of the 24km-completed fence, the court dismissed the application with costs and permitted KWS to complete the fence.

Key legal issues

#
01

Prima facie case with probability of success

Holding

Not established; the jointly commissioned survey found no encroachment on the plaintiffs' land

Reasoning

The court considered the joint survey report of August/September 2020 which found the fence 12.6km, 8 metres, 280 metres or more away from the various parcels, and that some plaintiffs had themselves encroached onto KWS land. The plaintiffs presented no report to contradict these findings, so no prima facie case was shown.

p. 2
02

Substantial loss and balance of convenience

Holding

Neither favours the plaintiffs; the fence is 24km of 30km complete and can be pulled down if they succeed

Reasoning

The court found that the fence does not affect the plaintiffs' land, so they would suffer no substantial loss. Even on balance of convenience, completing the 24km-completed fence outweighs stopping it, and destruction of the fence remains available if the plaintiffs ultimately win at trial.

p. 2

Legal principles established

#
  • Where no encroachment is demonstrated, a plaintiff cannot establish a prima facie case for an injunction
  • Balance of convenience may favour completion of a substantially completed project, with the remedy of pulling it down if the plaintiff ultimately succeeds

Court orders

#
  1. 1.The plaintiffs' application dated 17 June 2019 is dismissed with costs
  2. 2.The defendant is at liberty to complete the fence
Jurisdiction invoked
Environment and Land Court, original civil jurisdiction over land disputes (application for injunction in pending suit)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Josephat Mvoi Mwang’ombe & 8 others v Kenya Wildlife Services [2021] KEELC 4045 (KLR)", Case Analysis (2021). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4045/eng@2021-03-09

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