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ELCDismissedBusia ELC Case No. 213 of 2013· [2021] KEELC 4130 (KLR)

Joel Karam Epuret v Kenya Ports Authority & another [2021] KEELC 4130 (KLR)

Environment and Land Court
3 March 2021
AOA. Omollo
1,331 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost his bid to block Kenya Ports Authority from using disputed land because the 1987 compulsory acquisition and compensation records outweighed his ownership claim.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of NORTH TESO/KAMURIAI/1191 measuring approximately 3.4 hectares, applied by notice of motion dated 30th July 2020 for interim and temporary injunctions restraining the 1st Respondent from entering, constructing on, developing or dealing with the suit property pending determination of his suit. He deponed that the land was gifted to him by his late father, that the 1st Respondent encroached around 2006, and that on 27th July 2020 its agents began cutting trees and constructing a house. The 1st Respondent opposed through grounds of opposition and a replying affidavit of its Estate and Ratings Officer, Ephantus Waweru Rugethe, contending that 1.61ha of the suit property was compulsorily acquired in 1987 under the Land Acquisition Act vide Gazette Notices 4264 and 4265 of 11th September 1987 for construction of the Malaba Inland Depot; that compensation of KShs.209,300 was paid to Epuret Emaet; and that a 99-year lease (Grant No. L.R 83052) was registered in its favour on 1st March 2000. The Respondent also argued the application duplicated the amended plaint, was an abuse of process and offended the overriding objective, the parties having been directed on 8th July 2020 to comply with pre-trial requirements. No submissions were filed. Applying the prima facie case, irreparable loss and balance of convenience principles, the court found the acquisition documents attached value to the disputed portion, that any infringement of the plaintiff's rights was compensable in damages, and that the balance of convenience favoured the 1st Respondent, already in possession. The application was dismissed with costs, and the determination was applied mutatis mutandis to Busia ELC Case No. 213 of 2013.

Key legal issues

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Whether the plaintiff was entitled to an interim injunction over NORTH TESO/KAMURIAI/1191

Holding

The application was dismissed; the plaintiff did not satisfy the threshold for an interlocutory injunction.

Reasoning

The 1st Respondent produced gazette notices and documents showing the disputed portion (1.61ha) was compulsorily acquired in 1987 under the Land Acquisition Act, with compensation of KShs.209,300 paid to the plaintiff's father, and a 99-year lease granted to the 1st Respondent. The 1st Respondent is in possession, any residual interest is compensable in damages, and the balance of convenience favours the 1st Respondent.

p. 2

Legal principles established

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  • An applicant for an interlocutory injunction must demonstrate a prima facie case, irreparable loss not compensable in damages, and the balance of convenience

Court orders

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  1. 1.The plaintiff's application dated 30th July 2020 is dismissed with costs to the 1st Respondent
  2. 2.The determination applies mutatis mutandis to Busia ELC Case No. 213 of 2013

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Sections 1A, 1B and 3A
  • Land Acquisition Act, Cap 295Section 6(2)
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - not expressly stated in the judgment; application brought under the Civil Procedure Act, Cap 21

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, "Joel Karam Epuret v Kenya Ports Authority & another [2021] KEELC 4130 (KLR)", Case Analysis (2021). Busia ELC Case No. 213 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4130/eng@2021-03-03

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