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ELCPartially AllowedEnvironment & Land Case E56 of 2022· [2023] KEELC 16403 (KLR)

Moses Owino Odhiambo t/a Mosem Enterprises v Gisemba

Environment and Land Court
23 March 2023
LOL. A. Omollo
2,053 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (L. A. Omollo, J) on the applicant's Notice of Motion dated September 30, 2022, seeking a temporary injunction restraining the respondent from trespassing on, encroaching, occupying, grazing or cultivating land parcels L.R Nos. 527 and 528 Njoro pending the hearing of the main suit, with an ancillary prayer that the OCS Njoro Police Station enforce compliance. The underlying suit, by plaint seeking a permanent injunction, was filed on September 30, 2022; the respondent, though served, neither entered appearance nor filed documents. The applicant relied on allotment letters, receipts of premium payments to the Government of Kenya, and photographs showing the respondent tilling the land, planting wheat and cutting mature trees. The court framed two issues: whether the application was merited, and costs. Applying the Giella v Cassman Brown test as restated in Nguruman Limited v Jan Bonde Nielsen, and the definitions of prima facie case in Mrao Ltd and of irreparable injury and balance of convenience in Kogo and Amir Suleiman, the court found all three limbs satisfied sequentially: an apparent legal right infringed, continuing injury not adequately compensable in damages, and a greater risk of injustice in withholding the injunction, particularly given the respondent's non-appearance. The motion was allowed: the respondent and all persons claiming through him were restrained from the suit parcels pending hearing and determination of the suit. Costs of the application were ordered to abide the outcome of the main suit.

Key legal issues

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01

Whether the applicant established a prima facie case with a likelihood of irreparable injury and balance of convenience in his favour

Holding

Yes - the applicant demonstrated a prima facie case through allotment letters, receipts and photographs of trespass, showed continuing injury, and the balance of convenience favoured granting the injunction, especially as the respondent did not appear.

Reasoning

The court applied the Giella v Cassman Brown test as restated in Nguruman. Allotment letters and receipts evidenced an apparent legal right over the suit parcels; photographs showed the respondent tilling and planting wheat and cutting trees, demonstrating irreparable injury not compensable in damages. The respondent, though served, did not appear to challenge the application, so the greater risk of injustice lay in withholding the injunction.

Legal principles established

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  • The Giella v Cassman Brown conditions for temporary injunction are separate, distinct and logical hurdles to be surmounted sequentially; failure of the first ends the inquiry.

Court orders

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  1. 1.The Respondent, his servants, assigns, agents and or any person whomsoever is restrained from trespassing into, encroaching, occupying, grazing, cultivating and/or carrying any activity of whatsoever nature on land parcels L.R NO. 527 & L.R NO. 528 Njoro pending the hearing and determination of this suit.
  2. 2.The cost of this application shall abide the outcome of the main suit.

Authorities

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Legislation

  • Civil Procedure Actsection 27
  • Civil Procedure RulesOrder 40 rule 1

Cases cited (7)

  • Giella vs Cassman Brown
    (1973) EA 358

    Settled principles for granting temporary injunctions.

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

    Triple requirements for interlocutory injunctions applied sequentially; burden of proving prima facie case.

  • Mrao Ltd v First American Bank of Kenya Ltd
    (2003) eKLR

    Definition of a prima facie case in civil cases.

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

    Meaning of irreparable injury and balance of convenience.

  • Amir Suleiman v Amboseli Resort Limited
    [2004] eKLR

    Court should opt for the lower rather than higher risk of injustice.

  • Paul Gitonga Wanjau v Gathuthis Tea Factor Company Ltd & 2 others
    (2016) eKLR

    Balance of convenience and maintaining the status quo.

  • Robert Mugo Wa Karanja v Ecobank (Kenya) Limited & another
    [2019] eKLR

    Circumstances for temporary injunction under Order 40 rule 1 - property in danger of being wasted or damaged.

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) environment and land jurisdiction); interim relief under Order 40 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, "Moses Owino Odhiambo t/a Mosem Enterprises v Gisemba", Case Analysis (2023). Environment & Land Case E56 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16403/eng@2023-03-23

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