Vulpine Investments Limited v Posstone Limited & another [2022] KEELC 280 (KLR)
The bottom line
#A landowner failed to stop alleged trespassers because a title deed and photos alone could not prove who was actually mining the land.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case for temporary injunction
No; the evidence showed the Defendants were operating on a different parcel of land owned by Kando Enterprises Limited, where they had also sued for adverse possession
Applying Giella v Cassman Brown and the Mrao definition of prima facie case, the court weighed the Plaintiff's certificate of title against the Defendants' evidence: an official search, photographs and pleadings in Machakos ELC OS 11 of 2021 showing their adverse possession claim is on a different parcel owned by Kando Enterprises Limited. The Plaintiff's materials could not conclusively link the Defendants to mining on LR 15050/16, so the first Giella limb failed and the other limbs need not be reached.
Whether the court should grant eviction orders pending determination of the suit
Declined to deal with the issue, having already determined it in the Ruling of 24th November 2021, which found viva voce evidence necessary and no special circumstances for a mandatory injunction
The court reproduced its earlier Ruling of 24 November 2021, which had declined a mandatory injunction to evict because the photographs showed only a quarry and machines, conclusive proof of interference was absent, and viva voce evidence was pertinent to locate the parties' respective lands. Finding no new evidence to the contrary, the court declined to revisit the issue.
Legal principles established
#- Where a party fails to establish the first limb of the injunction test (prima facie case), the court need not consider the other limbs
- A certificate of title and photographs depicting mining activities are not conclusive proof that the particular defendants are the ones undertaking those activities
Court orders
#- 1.The Notice of Motion application dated 16th June 2021 is dismissed
- 2.Costs will be in the cause
- Jurisdiction invoked
- Order 40 Rules 1, 2, 3 & 4 of the Civil Procedure Rules; Sections 1A, 1B & 3A of the Civil Procedure Act; Articles 40 & 159(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vulpine Investments Limited v Posstone Limited & another [2022] KEELC 280 (KLR)", Case Analysis (2022). Not stated in the judgment (Machakos ELC, Notice of Motion dated 16th June 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/280/eng@2022-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.