Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment as provided· [2022] KEELC 798 (KLR)

Tetezi House Limited v Wycliffe Okunda alias Jere & 6 others [2022] KEELC 798 (KLR)

Environment and Land Court
10 March 2022
1,901 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

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

#
This Environment and Land Court judgment at Nairobi, delivered by L. Komingoi, J on 10th March 2022, determined two consolidated interlocutory applications filed by the Plaintiff/Applicant, the registered owner of LR NO 209/5533/3 measuring 0.03 Ha in Shauri Moyo, Nairobi. The notice of motion dated 9th September 2020 sought temporary and permanent injunctions restraining the Defendants/Respondents from renting, dealing with, or further constructing on illegal structures on the Northern boundary of the parcel, plus deposit of rental income. The notice of motion dated 5th May 2021 sought deposit of Kshs.10,000,000/- being the value of the allegedly encroached 0.03 Ha, alternatively monthly rental deposits of Kshs.210,000/-, appointment of an estate agent to collect rents, and eviction in default. The Defendants, through a replying affidavit of Wycliffe Okunda, opposed the applications, contending they had occupied the land since 2006, had acquired rights by adverse possession, and that the prayers were final in nature. The court framed two issues: whether the applications met the threshold for a temporary injunction and who should bear costs. Applying Giella v Cassman Brown and Mrao Ltd, the court found the applicant's own affidavit confirmed the defendants were in occupation before the applicant purchased the property, and that there was no valuation report supporting the Kshs.10 million claim nor evidence of the rent figure. Relying on Peter Kihika Ng'ang'a v Amos Kimeli Chamdala on balance of convenience, the court held the orders could not be granted at an interlocutory stage as all parties had to be heard on the encroachment. Both applications were dismissed with costs abiding the outcome of the main suit.

Key legal issues

#
01

Whether the applicant satisfied the Giella v Cassman Brown criteria for a temporary injunction

Holding

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

Reasoning

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.

p. 4
02

Costs of the applications

Holding

Costs were not awarded to either party immediately; they abide the outcome of the main suit

Reasoning

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.

p. 5

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. 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. 2.Costs of the applications do abide the outcome of the main suit

Authorities

#

Legislation

  • Constitution of Kenya 2010Article 40
  • Constitution of Kenya 2010Article 159(2)
  • Land Act 2012Sections 152A and 152E
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (11)

  • Giella vs Cassman Brown
    [1973] EA 358
  • Nguruman Limited vs Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Mrao Limited vs First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • John Mukora Wachichi & Others vs Minister of Lands and others
    HC Petition NO 82 of 2010
  • Joseph Arap Ng'ok vs Justice Moijo Ole Keiwua
    Civil App No 60 of 1997
  • Alice Wanjiru Ruhiu vs Messaic Assembly of Yahweh
    [2021] eKLR
  • Coast Legal Aid & Resource Foundation (CLARF) vs Coast Water Board Services & 2 Others
    [2012] eKLR
  • Clement Masanga Atonga vs Lewkadia Milungi
    [2021] eKLR
  • Sohanlaldurgadass Rajput & Another vs Divisional Integrated Development Programmes Co. Ltd
    [2021] eKLR
  • Racheal Mukami Ngugi vs Mercy Wanjiru Thogo
    [2014] eKLR
  • Peter Kihika Nganga vs Amos Kimeli Chamdala
    [2021] eKLR
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.