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ELCOtherNotice of Motion dated 13th October 2021 (filed with the Plaint)· [2022] KEELC 570 (KLR)

Diana Bukachi v Diani Beachalets [2003] Limited [2022] KEELC 570 (KLR)

Environment and Land Court
25 March 2022
ADA.E. Dena
3,176 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, registered owner of Kwale/Diani Beach Block/1813 purchased from the Respondent after subdivision of the Respondent's parcel, moved by Notice of Motion dated 13th October 2021 seeking temporary injunctions restraining the Respondent from blocking the beach access footpath adjoining the suit property, pursuant to clause 3.6 of their sale agreement of 23rd September 2011 which provided for a beach access easement. The easement documents were executed in 2014 but lost at the Land Registry before registration, and a replacement set was never executed; the Respondent subsequently closed the access. The Respondent opposed the application, asserting the easement was for residential use only, that the Applicant breached its terms by allowing strangers access and advertising cottages for sale, and that closure was for security reasons. The court, applying Order 40 Rule 2 of the Civil Procedure Rules and the Giella v Cassman Brown principles, found the Applicant had established a prima facie case, the easement existing on the ground and its closure being admitted. However, the court was not persuaded the damage was irreparable: any business loss was quantifiable and the Applicant had an alternative route to the beach, with no special circumstances shown to justify an injunction for a continuous breach. On the balance of convenience, the court directed that the status quo be maintained: the beach access gate to remain closed for security, but the Respondent to make it available to the Plaintiff's tenants subject to conditions imposed by the Respondent. Costs were ordered to be in the cause. Delivered at Kwale on 25th March 2022 by A.E. Dena, Judge.

Key legal issues

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01

Whether the Applicant established a prima facie case

Holding

A prima facie case was established

Reasoning

The Applicant produced a certificate of lease for Kwale/Diani Beach Block/1813 and the sale agreement dated 23/9/2011 containing clause 3.6 granting a beach access easement. The easement existed on the ground though unregistered, and its closure was admitted by the Respondent in the replying affidavit. Without delving into the merits, this sufficed for a prima facie case.

p. 3
02

Whether the Applicant would suffer irreparable injury not compensable by damages

Holding

No irreparable injury was shown

Reasoning

The court found any loss from the alleged B&B business could be quantified by comparing income trends before and after closure of the access, and the Applicant had deposed to an alternative route to the beach, mitigating damage. No special circumstances justified the exception for continuous breach.

p. 3
03

Balance of convenience

Holding

The status quo (access via alternative route, with conditional access for tenants) should be maintained

Reasoning

The easement had never been registered and the access remained closed. The Applicant currently accessed the beach by an alternative route, and the Respondent had previously allowed tenants' access subject to security conditions. The court balanced the parties' interests, preserving conditional access pending full hearing.

p. 3

Legal principles established

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  • An applicant for a temporary injunction must satisfy the Giella v Cassman Brown principles: prima facie case with probability of success, irreparable injury not compensable by damages, and if in doubt, balance of convenience
  • Easements are granted subject to conditions, limitations or restrictions

Court orders

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  1. 1.Pending the hearing and determination of this suit and in view of security concerns, the beach access gate shall remain closed
  2. 2.The Defendant/Respondent shall make available for use by the Plaintiff's tenants, subject to acceptance and compliance with conditions laid out by the Defendant on the use of the beach access gate
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 2

Cases cited (8)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Mrao Limited V First American Bank of Kenya Limited & 2 Others
    [2003] eKLR
  • Waithaka V Industrial and Commercial Development Corporation
    [2001] eKLR
  • Eastern Produce Kenya Limited V Chepsire [Savani] Farmers' Co-Operative Society Limited
    [2007]
  • Marsh View Limited V Benvar Estates Limited
    [2020] eKLR
  • Paul Gitonga Wanjau Vs Gathuthis Tea Factory Company Ltd & 2 Others
    (2016) eKLR
  • Joseph Kaloki T/A Royal Family Assembly Vs. Nancy Atieno Ouma
    (2020) eKLR
  • Samuel Njogu Kamotho & 43 Others v Kenya African National Union (Kanu)
    [2020] eKLR
Jurisdiction invoked
Order 40 Rule 2 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, "Diana Bukachi v Diani Beachalets [2003] Limited [2022] KEELC 570 (KLR)", Case Analysis (2022). Notice of Motion dated 13th October 2021 (filed with the Plaint). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/570/eng@2022-03-25

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