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ELCDismissedEnvironment & Land Case E152 of 2022· [2022] KEELC 13333 (KLR)

Sheikh v Yedah & 3 others

Environment and Land Court
30 September 2022
LMLucy N. Mbugua
1,383 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi landowner's bid to stop occupants from using disputed Eastleigh plots failed because the court refused to grant an injunction that would effectively evict them.

What this practically means

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Executive summary

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This is a ruling by LN Mbugua J of the Environment and Land Court at Nairobi on the applicant's notice of motion dated 22 April 2022 in Environment & Land Case E152 of 2022. The applicant, claiming to be the legal and rightful owner of Plot No. 44 & 45 (part of LR No. 209/7260/207 & LR No. 209/7260/208, Eastleigh Section III Sewerage Area, Nairobi), sought temporary injunctions restraining the defendants from entering, trespassing on, alienating, constructing on or otherwise interfering with the suit property pending hearing of the application and of the suit, plus an order that the OCPD California Police Station oversee compliance. He relied on purchase agreements from former allottees, registration of the lease with the City County of Nairobi in 2011, approved building plans, and a 2016 county letter approving amalgamation, alleging that the 1st and 2nd defendants trespassed in February 2019 and erected kiosks and shanty structures. The application was served but unopposed. The court held that an unopposed application must still be considered on its merits, citing Tullow Oil. It set out the Order 40(1) Civil Procedure Rules framework and the Giella v Cassman Brown conditions, tempered by authority that the court is not strictly bound by those principles. Although the applicant produced documents showing an interest in the land, photographs revealed the property was a built-up dwelling place with iron sheet structures and occupants, and the alleged trespass dated back over three years. The court reasoned that granting the injunction would amount to evicting the occupants and instead directed that the suit be fast-tracked for hearing on the merits. The application was dismissed with no orders as to costs.

Key legal issues

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Whether the applicant established a prima facie case and entitlement to a temporary injunction under Order 40 CPR 2010 and the Giella conditions

Holding

The application was dismissed; although the applicant showed an interest in the land through sale agreements and payment receipts, the court found the property is occupied as a dwelling place and the injunction would effectively evict occupants, so the suit should be fast-tracked instead

Reasoning

The court applied the Giella v Cassman Brown principles, noting the applicant had documents showing an interest in the land. However, photographs showed the land built up with old iron sheet structures, a gate and clothes lines, indicating a dwelling place occupied since the alleged 2019 trespass. Granting the injunction would evict occupants, so the court declined and directed a fast-tracked hearing on the merits.

p. 4

Legal principles established

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  • Even where an application is unopposed, the court must still consider its merits before granting relief
  • Injunctions are equitable remedies granted at the court's discretion on consideration of all relevant facts and fairness

Court orders

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  1. 1.The application dated 22.4.2022 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40(1)(a) and (b)

Cases cited (4)

  • Tullow Oil PLC & 3 Others v PS Ministry of Energy & 15 others
    (2020) eKLR

    That an unopposed application must still be considered on its merits

  • Giella vs Cassman Brown & Company Limited
    (1973) EA 358

    Conditions for granting an interlocutory injunction: prima facie case, irreparable damage, balance of convenience

  • Jan Bolden Nielsen vs Herman Phillipus Steya also Known as Hermannus Phillipus Steyn & 2 Others
    (2012) eKLR

    Court not strictly bound by Giella principles; may consider circumstances and the overriding objective

  • Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others
    [2016] eKLR

    Injunction as an equitable remedy granted at the court's discretion considering fairness and all relevant facts

Jurisdiction invoked
Order 40(1)(a) and (b) of the Civil Procedure Rules 2010 (interlocutory injunction in a land suit before the Environment and Land Court)

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, "Sheikh v Yedah & 3 others", Case Analysis (2022). Environment & Land Case E152 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13333/eng@2022-09-30

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