Jamal Holdings Limited & another v Ashwin Gidoomal [2021] KEELC 4768 (KLR)
The bottom line
#Kenya's Environment and Land Court barred a neighbour from using a Muthaiga property's access 'neck' because he could not prove his claimed easement with evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant established a prima facie case with a probability of success
The Applicant/Plaintiff established a prima facie case; the suit property is part of their property and the Respondent has no legal claim over it
Ownership of LR 214/702 was not contested. The Director of Survey clarified that the 'neck' of LR 214/702 forms part of its total acreage and is not an access road. The Respondent, who claimed an easement created at the time of subdivision by a 1993 conveyance, placed no evidence before the court showing how and when the easement was factored onto the suit property. The court therefore found the registered owner holds the legal interest and restrained the Respondent pending trial.
Burden of proving the claimed easement
The party asserting an easement must adduce evidence showing how and when it was created over the suit property
The Respondent/Defendant asserted that an easement for the benefit of his property was created at the time of the subdivision of LR 214/178, as recorded in a conveyance dated 31/10/93. However, no evidence was placed before the court demonstrating how and when that easement was factored onto the suit property. This evidential failure meant the claimed right could not withstand the application at this interlocutory stage.
Where the balance of convenience lies
The balance of convenience tilts in favour of the Applicant/Plaintiff as the legally registered owner
Applying the Giella v Cassman Brown principles, the court held that even where the court is in doubt, the balance of convenience must always tilt towards safeguarding the property rights of a legally registered owner. Notwithstanding the dispute over the access road which is the suit property, the balance favoured the Applicant/Plaintiff, supporting the grant of the interim injunction.
Legal principles established
#- An applicant for a temporary injunction must establish a prima facie case, irreparable harm not compensable in damages, and if in doubt the court decides on a balance of convenience
- The balance of convenience tilts towards safeguarding the property rights of a legally registered owner
Court orders
#- 1.Pending the hearing and determination of the suit or further orders, the Respondent/Defendant, his relatives, servants, employees, agents, assignees or anybody claiming under him are restrained from entering, accessing, trespassing, encroaching or in any way interfering with the Applicants/Plaintiffs' quiet occupation, use and possession of LR No. 214/702 delineated on Land Survey Plan Number 137808 in Muthaiga, Nairobi City County
- 2.Costs of the application to abide the outcome of the main suit
- 3.The matter flagged as suitable for negotiation and mediation if the parties are willing to engage
- Jurisdiction invoked
- Inherent jurisdiction under Sections 1A, 1B, 3A and 63(c) & (e) of the Civil Procedure Act and Order 40 Rules 1, 2 and 3 and Order 51 Rules 1 and 4 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jamal Holdings Limited & another v Ashwin Gidoomal [2021] KEELC 4768 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4768/eng@2021-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.