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ELCPartially AllowedNot stated in judgment· [2021] KEELC 4243 (KLR)

Banis Africa Ventures Limited v National Land Commission [2021] KEELC 4243 (KLR)

Environment and Land Court
11 February 2021
MOM. A. Odeny
2,309 words in judgment
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The bottom line

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Kenya's Environment and Land Court stopped the government from taking land for the Eldoret bypass until it paid the agreed Kshs. 44 million compensation balance.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret (M. A. Odeny, J) on a notice of motion dated 31 November 2020 by the plaintiff/applicant, an unopposed interlocutory application. The applicant, registered proprietor of Plots Nos. Kapseret/Block 10/Lamaywet/740-749 and 751, alleged that in January 2018 it agreed with the respondent (a road agency acquiring land for the Eldoret Town Bypass Road) on compensation for the plots and for developments thereon, but the respondent paid lesser sums and nothing for Plot No. 750, leaving a balance of approximately Kshs. 44,150,344. The respondent had issued notices of taking possession under Sections 120 and 121 of the Land Act 2012 with 30-day vacation notices dated 16 October 2020. The applicant sought temporary injunctions restraining the respondent from taking possession or interfering with the plots without clearing the balance, and an order compelling release of the balance pending hearing of the suit. The court framed one issue: whether the applicant met the Giella v Cassman Brown threshold for a temporary injunction. Applying that test, the court found the annexed, uncontroverted agreements established a prima facie case; that surrendering substantial land before full agreed compensation would cause irreparable harm not adequately compensable in damages, particularly as the respondent was in breach and construction would foreclose the grievance; and that a party cannot be condemned to take damages in lieu of a crystallized right. The application was allowed as prayed, with injunctions issuing and an order for release of the balance, and the parties were directed to comply with Order 11 within 30 days. No express costs order was recorded.

Key legal issues

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01

Whether the applicant established a prima facie case with a probability of success

Holding

Yes - the applicant annexed agreements with the respondent for compensation which were uncontroverted, establishing a prima facie case.

Reasoning

The court noted the applicant gave an elaborate background and annexed the compensation agreements, which the respondent, though served, did not controvert. At the interlocutory stage the court gauges only the strength of the plaintiff's case, not adjudicate the suit, per the authorities cited on prima facie case.

p. 3
02

Whether the applicant would suffer irreparable harm absent an injunction

Holding

Yes - the applicant would surrender substantial land for construction of the bypass before receiving the agreed full compensation, leaving no opportunity to ventilate its grievance afterwards.

Reasoning

The respondent had issued notices of taking possession under Sections 120 and 121 of the Land Act 2012 with 30-day vacation notices, and construction was imminent. Since the agreed compensation had not been fully paid, damages were not an adequate remedy; the respondent would gain an advantageous position by breaching the agreement.

p. 3

Legal principles established

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  • An applicant for a temporary injunction must establish a prima facie case with a probability of success, irreparable injury not compensable by damages, and failing which the balance of convenience (Giella v Cassman Brown).
  • Where the respondent's act is unlawful or in breach of an agreement, damages are not an automatic or adequate remedy and a party cannot be condemned to take damages in lieu of a crystallized right protectable by injunction.

Court orders

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  1. 1.Temporary injunction restraining the respondent from taking possession of, entering, encroaching, trespassing on, working on, constructing on, using, acquiring or interfering with Plots Nos. Kapseret/Block 10/Lamaywet/740, 741, 742, 743, 744, 745, 746, 747, 748, 749 and 751 without clearing the balance of the awards for the plots and developments totaling Kshs. 44,150,344, pending the hearing and determination of the suit
  2. 2.Order compelling the respondent to release the balance of the awards for the plots and developments totaling Kshs. 44,150,344, pending hearing of the suit inter-partes
  3. 3.Parties to comply with Order 11 within 30 days

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40 Rule 2
  • Land ActSections 120 & 121

Cases cited (12)

  • Giella vs Cassman Brown & Company Limited
    (1973) E A 358
  • Naftali Ruthi Kinyua v Patrick Thuita Gachure & another
    [2015] eKLR
  • American Cyanamid vs Ethicon Limited
    [1975] AC 396
  • Vivo Energy Kenya Limited v Maloba Petrol Station Limited & 3 others
    [2015] eKLR
  • HABIB BANK AG ZURICH V. EUGENE MARION YAKUB
    CA NO. 43 OF 1982
  • NATIONAL BANK OF KENYA V. DUNCAN OWOUR SHAKALI & ANOTHER
    CA NO. 9 of 1997
  • AGIP (K) LTD V. VORA
    [2000] 2 EA 285
  • Kenleb Cons Ltd vs New Gatitu Service Station Ltd & another
    [1990} K.L.R 557
  • Said Almed vs. Mannasseh Benga & Another
    [2019] eKLR
  • Aikman vs Muchoki
    (1984) KLR 353
  • Joseph Mbugua Gichanga vs Co-operative of Kenya Ltd
    (2005) eKLR
  • Joseph Siro Mosioma vs. Housing Finance Company of Kenya Limited & 3 Others
    [2008] eKLR
Jurisdiction invoked
Original jurisdiction under Order 40 Rule 2 of the Civil Procedure Rules 2010 (interlocutory injunction in a pending suit)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Banis Africa Ventures Limited v National Land Commission [2021] KEELC 4243 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4243/eng@2021-02-11

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