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ELCAllowedEnvironment & Land Case E015 of 2022· [2022] KEELC 14987 (KLR)

Nyonje v Kenya National Highways Authority & 2 others

Environment and Land Court
24 November 2022
1,424 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kisumu court stopped KeNHA and its contractor from building on private land after the owner showed valid titles and a surveyor's report proving encroachment.

What this practically means

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Executive summary

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The Plaintiff, registered owner of seven subdivisions of LR No. 20348, moved the Environment and Land Court at Kisumu by Notice of Motion dated 11th April 2022 under sections 3 and 3A of the Civil Procedure Act and Orders 40 and 50 of the Civil Procedure Rules, seeking temporary injunctions restraining the Kenya National Highways Authority and China Railway No. 10 Engineering Group from trespassing on, encroaching on or carrying out road construction on the suit parcels. He alleged that from March 2022 the Defendants encroached on the parcels while constructing a road, that a Surveyor's report confirmed the encroachment, and that the loss - land valued at Kshs. 68,000,000 as at 2018 - would be irreparable. The Defendants failed to file a response or submissions despite directions, leaving the application unopposed. The court, per A Ombwayo J, framed a single issue: whether the Plaintiff met the threshold for a temporary injunction. Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, and guided by Airland Tours on the limits of interlocutory findings, the court confirmed the titles were registered in the Plaintiff's name and that the Surveyor's report showed encroachment by the 1st Defendant. It found a prima facie case with likelihood of success, likely irreparable injury hindering development of the properties, and the balance of convenience favouring the Plaintiff. It granted a temporary injunction pending determination of the suit and awarded costs of the application to the Plaintiff against the Respondents.

Key legal issues

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01

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

Holding

Yes - the titles were registered in the Plaintiff's name and the Surveyor's report showed the 1st Defendant had encroached on the suit parcels.

Reasoning

The court examined the titles to the suit properties and confirmed registration in the Plaintiff's name. The Surveyor's report demonstrated encroachment by the 1st Defendant. On that material, the Plaintiff showed an apparent infringement of a right sufficient to call for rebuttal, satisfying the Giella first principle and the Mrao definition of a prima facie case.

p. 3
02

Whether the Plaintiff would suffer irreparable injury not compensable by damages, and where the balance of convenience lies

Holding

Yes - the extent of encroachment hinders development of the suit properties, and the balance of convenience tilts towards granting the injunction.

Reasoning

The court found that if the orders were not granted the Plaintiff was likely to suffer irreparable injury because the extent of encroachment hindered development of the suit properties. It further found the balance of convenience favoured granting the orders, completing the Giella threshold and justifying the temporary injunction pending full trial.

p. 3

Legal principles established

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  • In an interlocutory application the court makes no conclusive findings of fact or law on contradictory affidavit evidence or disputed propositions of law.
  • A prima facie case is one in which, on the material presented, a tribunal properly directing itself concludes that a right has apparently been infringed so as to call for an explanation or rebuttal.

Court orders

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  1. 1.Temporary injunction pending the hearing and determination of the suit restraining the 1st and 2nd Defendants, their agents, employees, servants, representatives or any other person authorized by them from trespassing, encroaching, carrying out road construction or working on land parcels LR No. 20348/9, 20348/10, 20348/11, 20348/12, 20348/13, 20348/15 and 20348/16 or in any other way interfering with the said land parcels
  2. 2.Costs of the application to be borne by the Respondents

Authorities

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Legislation

  • Civil Procedure Actsections 3, 3A
  • Civil Procedure RulesOrder 40 Rules 1, 2 and 4; Order 50 Rule 1

Cases cited (6)

  • Giella vs Cassman Brown Co Ltd
    (1973) EA 358

    Conditions for granting a temporary injunction: prima facie case, irreparable injury, balance of convenience

  • Nguruman Limited vs Jan Bonde Nielsen & 2 Others
    CA N. 77 of 2012 (2014) eKLR

    Threshold for temporary injunctions, relied on by Plaintiff

  • Kenya Electricity Transmission Company Limited vs Kibotu Limited
    (2019) eKLR

    Relied on by Plaintiff on injunction principles

  • Airland Tours and Travel Ltd vs National Industrial Credit Bank
    Milimani HCCC No.1234 of 2003

    Court makes no conclusive findings of fact or law at interlocutory stage

  • E.A Industries vs Trufoods
    (1972) EA 420

    Cited within Giella quotation on injunction conditions

  • Mrao Ltd vs First American Bank of Kenya Ltd & Others
    (2003) KLR

    Definition of a prima facie case

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act; application brought under section 3, 3A of the Civil Procedure Act and Orders 40 Rules 1, 2 and 4 and Order 50 Rule 1 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, "Nyonje v Kenya National Highways Authority & 2 others", Case Analysis (2022). Environment & Land Case E015 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14987/eng@2022-11-24

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