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ELCDismissedNot stated in the judgment· [2021] KEELC 4168 (KLR)

Matthew Kipkirui Rono v Jepcom Ventures Co. Limited & another [2021] KEELC 4168 (KLR)

Environment and Land Court
25 February 2021
2,759 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kericho court refused to stop road works on a market plot because the owner had no title deed or official document proving ownership.

What this practically means

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Executive summary

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The Applicant moved the Environment and Land Court at Kericho by Notice of Motion dated 8th June 2020 under Order 40 Rules 1, 4 and 8 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act, seeking interim injunctive orders restraining the Respondents from further demolishing, digging on or dealing with his property on Plot No. 2A Kapkugerwet Market pending the hearing of the suit. He relied on a sale agreement of 13th January 2007, a 2012 letter to the town clerk and payment receipts as proof of ownership, and contended the intended road did not exist on the official survey map. Both Respondents opposed, asserting the Applicant had encroached 1.6 metres onto a road reserve, had been served with an enforcement notice, and had no proprietary interest entitling him to an injunction. Applying the Giella v Cassman Brown principles as restated in R.J.R. Macdonald, the court found no prima facie case: no allotment letter, title deed or registerable document was produced to prove ownership or interest in the plot or the road reserve. In the alternative, the court held any loss would be compensable in damages after valuation, and that the balance of convenience favoured completion of the public road project. The application dated 8th June 2020 was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the Applicant established a prima facie case

Holding

No prima facie case was established because no allotment letter, title deed or registerable document was presented as evidence of proprietary ownership of Plot No. 2A Kapkugerwet Market or the road reserve

Reasoning

The Applicant relied on a sale agreement of 13th January 2007, a letter to the town clerk of 29th October 2012 and rate payment receipts. The court held these did not amount to prima facie evidence of proprietary ownership or interest. Since the Giella test is sequential, failure on the first limb was fatal, though the court proceeded to consider the other limbs in the alternative.

p. 3
02

Whether the Applicant would suffer irreparable harm not compensable in damages

Holding

Any loss could be compensated in damages after valuation if the Applicant ultimately proved ownership

Reasoning

The court found the Respondents' position represented the greater public interest in completing the road. The Applicant's interest was private, and he could be adequately compensated in damages after valuation of his property should he succeed at trial.

p. 4
03

Where the balance of convenience lies

Holding

The balance of convenience tilts against granting an injunction because stalling a public road project would harm the wider public

Reasoning

The court found that the wider public would suffer more if construction of the road was stalled by an injunction. The public good and interest in completing the road outweighed the Applicant's private interest, so the balance of convenience lay against hindering completion of the construction.

p. 4

Legal principles established

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  • The enquiry into whether to grant an interlocutory injunction is sequential: the second condition is addressed only if the first (prima facie case) is satisfied
  • A prima facie case is a genuine and arguable case showing an apparent infringement of a right calling for an explanation or rebuttal from the opposite party

Court orders

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  1. 1.Dismissal of the application dated 8th June 2020
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 4 and 8
  • Civil Procedure ActSections 3 and 3A

Cases cited (9)

  • GIELLA versus CASSMAN BROWN
    (1973) EA 358
  • R. J. R. Macdonald vs. Canada (Attorney General)
    [1994] 1 S.C.R. 311
  • MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    (2003) KLR 125
  • Kenya Commercial Finance Co. Ltd –vs- Afraha Education Society
    (2001) IEA 86
  • Joseph Wambua Mulusya –vs- David Kitu & Another
    (2014) eKLR
  • Daniel Kamau Mugambi vs Housing Finance Company of Kenya Limited
    [2006] eKLR
  • Joseph Waininia Kinyanjui & Another vs Kenya National Highways Authority
    [2018] eKLR
  • Paul Gitonga Wanjau vs gathuthis Tea Factory Company Ltd & 2 Others
    [2016] eKLR
  • Parkside Medical Centre Limited vs. Nairobi City County
    Civil Appeal No. 54 of 2016
Jurisdiction invoked
Order 40 Rules 1, 4 and 8 of the Civil Procedure Rules; Sections 3 and 3A of the Civil Procedure Act

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, "Matthew Kipkirui Rono v Jepcom Ventures Co. Limited & another [2021] KEELC 4168 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4168/eng@2021-02-25

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