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ELCDismissedEnvironment and Land Appeal 27 of 2021 (Formerly Machakos ELC Appeal No. 5 of 2020)· [2022] KEELC 13532 (KLR)

Musyoka v King'oto & 2 others

Environment and Land Court
5 October 2022
3,907 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost his appeal because he brought no survey evidence to court, showing expert proof is essential in boundary disputes.

What this practically means

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Executive summary

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The appellant, plaintiff in Chief Magistrate's ELC Case No. E20 of 2020 at Kitui, appealed against the trial court's ruling dismissing his application for a temporary injunction restraining the 1st respondent from constructing on land parcel Mulango/Wikililye/2292, which he claimed to own and alleged she had encroached upon. The 1st respondent asserted ownership of the adjacent Mulango/Wikililye/1862 and produced a Ministry of Lands survey report indicating the appellant was the encroaching party; the appellant produced no survey report. The trial court found no prima facie case, held damages adequate, and found the balance of convenience favoured the 1st respondent. On appeal, LG Kimani J consolidated the six grounds into three issues. The court held that the trial court's reliance on the survey report did not amount to a summary final determination of a contested issue, since the finding was only that it 'appeared' the appellant had encroached, leaving the question for trial. Applying Giella v Cassman Brown, Nguruman and Mrao, the court found the appellant failed to discharge the burden of showing a clear and unmistakable right threatened, produced no expert evidence, and failed to prove irreparable loss incapable of monetary compensation, damages and demolition being adequate. The balance of convenience favoured the 1st respondent given her construction and estimated monthly rental loss of Kshs 215,000. On the ground that the ruling was dated on a different day than it was read, no finding was made for want of submissions and authority. The appeal was dismissed with costs to the respondents and the trial court file returned for hearing of the main suit.

Key legal issues

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01

Whether the trial court determined a contested issue summarily at interlocutory stage by relying on the survey report

Holding

No - the trial court's use of the word 'appeared' showed it did not make a final determination; the matter must proceed to full trial

Reasoning

The trial court found on the survey reports that it appeared the applicant had encroached, but this was only a provisional view on the balance of probability for purposes of the injunction application. It did not decide the validity of the survey report or who truly encroached; those remain for trial.

02

Whether the appellant established a prima facie case with a probability of success

Holding

No - the appellant produced no survey report or expert evidence to show a clear and unmistakable right being threatened

Reasoning

The burden lay on the appellant to show a clear and unmistakable right directly threatened by the act sought to be restrained. Based on the respondents' surveyor's report and the absence of any expert report from the appellant, the trial court's finding that no right warranting protection was shown was not erroneous.

03

Whether the appellant would suffer irreparable loss not compensable in damages

Holding

No - damages and demolition of the structure would adequately compensate the appellant if he succeeded at trial

Reasoning

The trial court found the appellant could be compensated monetarily and the 1st Respondent's structure demolished if he succeeded. The 1st Respondent estimated monthly rental loss of Kshs 215,000 if injuncted. The appellant failed to prove irreparable loss incapable of monetary compensation.

p. 7
04

Where the balance of convenience tilts

Holding

In favour of the 1st Respondent, who stands to lose the most given her ongoing construction

Reasoning

Since the 1st Respondent bears the cost of construction on the disputed portion and estimated substantial monthly rental income loss, the balance of convenience favours refusing the injunction, consistent with the trial court's finding.

p. 7
05

Whether the discrepancy between the ruling's date and its delivery date was an error of law

Holding

No finding made - the appellant made no submissions and cited no law violated

Reasoning

The appellant merely listed the ground of appeal as a matter of fact without submissions or authority showing any law violated by dating the ruling January 20, 2021 and reading it on January 22, 2021. The court therefore made no finding on the issue.

p. 7

Legal principles established

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  • A trial court's finding based on a survey report that it 'appeared' the applicant had encroached is not a final determination of a contested issue at an interlocutory stage
  • Where rights to titles are not disputed but encroachment is denied, the court looks to the balance of convenience in an interlocutory injunction application

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondents
  2. 2.The trial court's file to be returned for hearing and final determination of the main suit

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rule 1(a) and (b)
  • Civil Procedure Rules Cap 21 [Subsidiary][Rev 2012]

Cases cited (9)

  • Thomas Mumo Maingey v Sarah Nyiva Hillmans & 3 others
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125

    Definition of prima facie case in civil cases

  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    (2018) eKLR

    Irreparable harm and adequacy of damages

  • Nguruman Ltd v Jan Bonde Nielsen & 2 others
    CA No 77 of 2012 (2014) eKLR

    Conditions for prima facie case and injunction criteria

  • Cyanamid Co v Ethico, Ltd
    (1975) AER 504

    Three elements for interlocutory injunction

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

    Settled conditions for granting interlocutory injunction

  • Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates
    [2013] eKLR

    Duty of first appellate court to re-evaluate evidence

  • Teresia Wanjiku Kamau & another v John Ngugi Kabogo & 3 others
    [2021] eKLR

    Similar facts on survey reports and prima facie case at interlocutory stage

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

    Balance of convenience where right is not disputed but violation denied

On appeal from
Chief Magistrate's Environment and Land Court at Kitui
E20 of 2020
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Environment and Land Court ruling

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, "Musyoka v King'oto & 2 others", Case Analysis (2022). Environment and Land Appeal 27 of 2021 (Formerly Machakos ELC Appeal No. 5 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13532/eng@2022-10-05

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