Tetezi House Limited v Wycliffe Okunda alias Jere & 6 others [2022] KEELC 798 (KLR)
The bottom line
#A Nairobi landowner's bid to stop tenants from renting structures on disputed land failed because the buyer knew the occupants were already there before purchasing.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant satisfied the Giella v Cassman Brown criteria for a temporary injunction
The applications failed; a prima facie case was not established as the applicant's own affidavit confirmed the defendants were in occupation before the applicant purchased the property, and the claimed value and rent lacked evidential support
The court applied Giella v Cassman Brown and Mrao Ltd on prima facie case. The plaintiff's own affidavit averred that the structures existed at the time of purchase and that eviction notices date back to 2012, confirming long occupation by the defendants. There was no valuation report supporting the Kshs.10 million claim nor evidence of monthly rent of Kshs.210,000. The court also relied on the balance-of-convenience reasoning in Peter Kihika Ng'ang'a v Amos Kimeli Chamdala.
Costs of the applications
Costs were not awarded to either party immediately; they abide the outcome of the main suit
Having dismissed both applications, the court declined to make an immediate award of costs, instead directing that costs abide the outcome of the substantive suit, which remains pending.
Legal principles established
#- In an application for injunction the onus is on the Applicant to satisfy the court that it should grant an injunction, per the Giella principles
- Orders in the nature of final relief, or deposit of value/rent, cannot be granted at an interlocutory stage where encroachment is disputed
- Balance of convenience is a test of which party would suffer the greater inconvenience if the orders are granted or denied
Court orders
#- 1.The applications (notice of motion dated 9th September 2020 and notice of motion dated 5th May 2021) are dismissed for lack of merit
- 2.Costs of the applications do abide the outcome of the main suit
- Jurisdiction invoked
- Article 40 of the Constitution of Kenya 2010; sections 152A and 152E of the Land Act 2012; sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tetezi House Limited v Wycliffe Okunda alias Jere & 6 others [2022] KEELC 798 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/798/eng@2022-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.