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ELCAllowedNot stated in the judgment as provided· [2022] KEELC 20 (KLR)

Koyopel v Lomukerang & another (Environment & Land Case 8 of 2022) [2022] KEELC 20 (KLR)

Environment and Land Court
5 May 2022
FNFred Nyagaka
2,296 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A registered landowner in West Pokot stopped a neighbour's construction on his land by getting a 12-month court injunction.

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 Kitale on the Plaintiff's Notice of Motion dated 03/02/2022 seeking confirmation of an interim injunction restraining the Defendants from trespassing on, constructing on, or interfering with land parcel West Pokot/Siyoi/372 measuring 6.8 hectares. The Plaintiff, registered proprietor of that parcel, complained that his neighbour, the 1st Respondent, deposited building materials and commenced construction on a portion of his land, and that the 2nd Respondent had, by letter dated 21/12/2021, authorised the 1st Respondent to proceed. The 1st Respondent denied encroachment, asserting the disputed portion formed part of public utility plots on West Pokot/Siyoi/374 and that boundaries were marked by fencing posts erected in 1972. The Court applied the Giella v Cassman Brown conditions. On the first limb it found a prima facie case, holding that the Applicant's title evidenced ownership and that questions of its genuineness were matters for trial. On the second limb it held continued construction would change the land's character and cause harm not compensable in damages. It further found the balance of convenience favoured granting the injunction. The Court granted a temporary injunction restraining the Defendants from interfering with the parcel pending hearing and determination of the suit, to last twelve months subject to extension, ordered costs to abide the outcome, and directed compliance with Order 11 within thirty days, with a virtual mention on 06/06/2022.

Key legal issues

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01

Prima facie case

Holding

The Applicant demonstrated a merited case with probable chance of success by virtue of his title to West Pokot/Siyoi/372

Reasoning

The Applicant produced a title issued from the lawful office evidencing ownership of the parcel. The crux of the matter is ownership of the disputed portion. Whether the title is genuine or was issued against a proper parcel is a matter for trial. On the material presented, an apparent infringement of a right calling for rebuttal was established, satisfying the prima facie case threshold.

p. 4
02

Irreparable harm

Holding

Continued construction would change the character of the land and could not be adequately compensated by damages

Reasoning

Construction and placement of materials had already hived off part of the Applicant's parcel. Allowing it to continue would effectively grant the 1st Respondent ownership of the disputed portion without trial, and would change the parcel's character, causing harm damages could not remedy.

p. 4
03

Balance of convenience

Holding

Balance of convenience favoured granting the injunction

Reasoning

Even having satisfied the first two conditions, the Court found the balance of convenience favoured granting the injunction, enabling the matter to be determined on its merits in line with audi alteram partem.

p. 4

Legal principles established

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  • Conditions precedent for a temporary injunction: prima facie case, irreparable harm not compensable in damages, and balance of convenience
  • Definition of a prima facie case in civil matters
  • An injunction application is not a mini-trial

Court orders

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  1. 1.Temporary injunction restraining the Defendants from entering into, wasting, damaging, taking measurements, constructing or carrying out any further construction on land parcel West Pokot/Siyoi/372 pending the hearing and determination of the suit
  2. 2.Costs to abide by the outcome of the matter
  3. 3.Injunction to remain in force for twelve (12) months subject to extension under Order 40 Rule 6
  4. 4.Parties to comply with Order 11 of the Civil Procedure Rules and the 2014 Practice Directions including filing of an indexed paginated trial bundle within thirty (30) days
  5. 5.Suit to be mentioned virtually on 06/06/2022 to confirm compliance and fix a hearing date

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 6
  • Civil Procedure RulesOrder 11
  • Practice Directions under Gazette Notice No. 51782014 Practice Directions dated 25/07/2014

Cases cited (3)

  • Giella -vs- Cassman Brown
    (1973) E.A. 358
  • Mrao Limited -vs- First American Bank of Kenya Limited & 2 others
    [2003] eKLR
  • Nguruman Limited -vs- Jan Bonde Nielsen & 2 others
    [2014] eKLR
Jurisdiction invoked
First-instance interlocutory application under the Civil Procedure Act and Order 40 of the Civil Procedure Rules

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, "Koyopel v Lomukerang & another (Environment & Land Case 8 of 2022) [2022] KEELC 20 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/20/eng@2022-05-05

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