Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedEnvironment & Land Case E052 of 2022· [2023] KEELC 18545 (KLR)

Focus Container Freight Station Limited v Kenya Ports Authority

Environment and Land Court of Kenya
12 June 2023
21,872 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~87 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court ruled that the Kenya Ports Authority cannot occupy private land for a public project without completing compulsory acquisition and paying compensation.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Mombasa (Naikuni J) determined four interlocutory applications arising from a dispute over LR Number MN/VI/3711 in Mombasa, part of which the Kenya Ports Authority occupied for the Kipevu Oil Terminal (KOT) Project. The Plaintiff, the admitted registered lessee, claimed trespass and sought temporary and mandatory injunctions and judgment on admission, alleging the Defendant took possession in 2019 on an understanding that it would acquire the portion and compensate the Plaintiff, but never completed acquisition or paid compensation. The Defendant contended the occupation was lawful pending compulsory acquisition, that compensation was the sole remedy, that the Plaintiff's second application was res sub-judice, and that its own applications should set aside ex-parte orders of 1st December 2022 given the Kshs 40 billion public project. Applying Giella v Cassman Brown and Nguruman, the court found a prima facie case (possession cannot precede compulsory acquisition), irreparable harm not compensable in damages, and balance of convenience favouring the Plaintiff. It further found special circumstances justifying an interlocutory mandatory injunction and entered judgment on admission under Order 13, holding the Defence admitted ownership, occupation and non-compensation. The Plaintiff's applications were allowed effective 12th September 2023, with a mandatory injunction to vacate conditioned on a three-month grace period to finalise acquisition, a mutual sale agreement, joint valuation and deposit payment. The Defendant's applications were dismissed with costs to the Plaintiff.

Key legal issues

#
01

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

Holding

Yes - the Plaintiff is the admitted registered proprietor, the Defendant's occupation continued after permission was withdrawn, and the compulsory acquisition process had not been lawfully commenced or completed

Reasoning

The court found the Plaintiff's registered title undisputed and conceded by the Defendant. Permission to occupy was withdrawn by the demand of 9th February 2022. The Defendant relied on a compulsory acquisition process that had never materialised; possession cannot precede acquisition. The Defendant's delay and failure to compensate established an apparent infringement of the Plaintiff's proprietary rights.

p. 32
02

Whether the Plaintiff would suffer irreparable harm not compensable in damages

Holding

Yes - the deprivation of the Plaintiff's property and loss of use could not be adequately compensated by damages

Reasoning

Applying Nguruman and Pius Kipchirchir Kogo, the court held the injury of continued deprivation of the suit property was actual, substantial and not measurable in monetary terms, since the Plaintiff had lost the ability to develop, use or dispose of the property while the Defendant remained in occupation without paying compensation.

p. 32
03

Whether the balance of convenience favoured granting the injunction

Holding

Yes - there was a lower risk of injustice in granting the temporary injunction than in refusing it

Reasoning

Guided by Amir Suleiman v Amboseli Resort, the court opted for the lower risk of injustice, noting it had not yet interrogated all documents on the history of the title or the Defendant's annexures, and that the disputed property might be dealt with in the manner apprehended by the Plaintiff if no injunction issued.

p. 33
04

Whether a mandatory injunction should issue at the interlocutory stage

Holding

Yes - special circumstances existed: the Defendant took possession, constructed works of colossal cost without compensation, and was attempting to steal a march on the Plaintiff

Reasoning

The court applied Kenya Breweries v Okeyo, Andrew Kamau Mucuha and Nation Media Group v Mwau, holding the matter clear, plain and straightforward, admitting of no real triable issues, and that the Defendant's insistence on triable issues was an attempt to steal a match and obtain a second bite at the cherry.

p. 35
05

Whether judgment on admission should be entered

Holding

Yes - the Defendant's Defence and Replying Affidavit contained clear admissions of the Plaintiff's registered ownership, possession and non-compensation, leaving no triable issues

Reasoning

Under Order 13 Rules 1 and 2 of the Civil Procedure Rules, the court found the Defence admitted the Plaintiff's proprietorship and the Defendant's occupation and construction of the KOT Project components without compensation. Relying on Choitram v Nazari, the court held the admissions plain and obvious and entered judgment on admission.

p. 36

Legal principles established

#
  • Possession of private land by a public body cannot precede lawful compulsory acquisition; taking possession without completing acquisition or paying compensation is unlawful
  • Judgment on admission may be entered where admissions in pleadings or affidavits are clear, plain and unambiguous
  • A mandatory injunction may issue at the interlocutory stage where special circumstances exist, the case is clear and ought to be decided at once, or the defendant attempts to steal a march on the plaintiff

Court orders

#
  1. 1.The Plaintiff's Notice of Motion applications dated 13th May, 2022 and 30th November, 2022 allowed in their entirety but effective from 12th September, 2023
  2. 2.Temporary injunction restraining the Defendant, its agents, workers and contractors from further developing, building and/or erecting any structures on LR Number MN/VI/3711
  3. 3.Temporary order restraining the Defendant from trespassing, entering into and/or occupying or interfering with LR Number MN/VI/3711
  4. 4.Judgment on admission to be entered in favour of the Plaintiff pursuant to Order 13 Rules (1) and (2) of the Civil Procedure Rules, 2010
  5. 5.Mandatory injunction compelling the Defendant to vacate LR Number MN/VI/3711, subject to conditions: a three-month grace period to commence and finalize acquisition of the portion of the suit land; the parties to enter into a Mutual Sale Agreement; the parties to mutually prepare and agree on a Joint Valuation; and the parties to agree on a reasonable deposit payment of the agreed compensation upon execution of the agreement
  6. 6.The Defendant's Notice of Motion applications dated 7th December, 2022 and 14th April, 2023 dismissed with costs
  7. 7.Costs of the applications dated 13th May, 2022 and 30th November, 2022 and of the suit awarded to the Plaintiff, to be borne by the Defendant

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 40 Rules 1(a), 2, 4, 6 and 7
  • Civil Procedure Rules, 2010Order 51 Rules 3 and 15
  • Civil Procedure Rules, 2010Order 13 Rules 1 and 2
  • Civil Procedure Rules, 2010Order 2 Rules 6 and 15
  • Civil Procedure ActSections 1A, 1B, 3A and 27(1)
  • Civil Procedure ActSections 6, 5 and 89
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 40(3)
  • Constitution of Kenya, 2010Article 159(2)(c)
  • Land Act, No. 6 of 2012Sections 107 to 133, including 107(1), 111(1A) and 120(2)
  • Land Registration Act, No. 3 of 2012Sections 24, 25 and 26
  • Environment and Land Court Act, 2011Section 20(2)
  • Kenya Ports Authority Act, Cap. 391Section 62

Cases cited (45)

  • Giella v Cassman Brown & Co Ltd
    (1973) EA 358

    Principles for grant of temporary injunction: prima facie case, irreparable injury, balance of convenience

  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR

    Three conditions applied sequentially; definition of irreparable injury

  • MRAO Limited v First American Bank of Kenya Ltd & 2 others
    (2003) KLR 125

    Definition of a prima facie case

  • Mbuthia v Jimba Credit Corporation Ltd
    1988 KLR 1

    Court on interlocutory injunction weighs relative strength of parties' cases, not final findings

  • Edwin Kamau Muniu v Barclays Bank of Kenya Limited

    Interlocutory application determined on usual criteria, not final determination

  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR

    Meaning of irreparable injury and balance of convenience

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

    Irreparable harm must not be quantifiable in monetary terms; balance of convenience

  • Amir Suleiman v Amboseli Resort Limited
    [2004] eKLR

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

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

    Circumstances for granting temporary injunction under Order 40 Rule 1

  • Kenya Breweries Limited & another v Washington O. Okeyo
    (2002) EA 109

    Mandatory injunction at interlocutory stage only in special circumstances or clear cases

  • Andrew Kamau Mucuha v Ripples Limited
    Civil Appeal 19 of 1998

    Higher degree of assurance required for interlocutory mandatory injunction

  • Nation Media Group & 2 others v John Harun Mwau
    (2014) eKLR

    Special circumstances required for interlocutory mandatory injunction

  • Jay Super Power Cash and Carry Limited v Nairobi City Council and 20 others
    CA 111/2002

    Trespasser should give way pending determination; trespass not excused by compensability in damages

  • Sharif Abdi Hassan v Nadhif Jama Adan
    [2006] eKLR

    Courts grant mandatory injunction at interlocutory stage where party is prima facie on the wrong

  • Choitram v Nazari
    (1984) eKLR

    Judgment on admission: express or implied admissions, plain and obvious cases

  • Cassam v Sachania
    (1982) KLR 191

    Judgment on admission is discretionary, exercised sparingly where admission clear and unequivocal

  • Agricultural Finance Corporation v Assurance (In receivership)
    CA No. 271 of 1996, Nairobi

    Judgment on admission discretionary and exercised sparingly

  • Mwaura Karuga v Embakasi Ranching Co. Limited
    HCC No. 260

    Judgment on admission principles

  • Delamere Estates Limited v Ndung'u Njai & 42 others
    [2006] eKLR

    Once permission to occupy land ceases, continued occupation is without colour of right

  • Bosire Ombwochi v Wilkister Moraa Boera
    [2015] eKLR

    Failure to challenge title and justify entry establishes prima facie case of trespass

  • Machareus Obaga Anunda v Kenya Electricity Transmission Co. Ltd
    [2015] eKLR

    Plaintiff dispossessed by trespasser suffers irreparable harm

  • Dismas Otella Osikoyo & 2 others v Thomas Barasa Kimani
    [2018] eKLR

    Trespasser should give way pending determination of dispute

  • Johnson M'Mwangera Njuki & 8 others v Wellington Sanga & 13 others
    [2021] eKLR

    Three principles for mandatory injunction at interlocutory stage

  • Kenya National Commission on Human Rights v Attorney General

    Res sub-judice requires more than one suit over the same subject matter

  • Uhuru Highway Development Limited v Central Bank of Kenya & 2 others
    (1996) eKLR

    Res judicata applies to applications within a suit; there must be an end to interlocutory applications

  • M'Mukanya v M'Mbijiwe
    (1984) eKLR 761

    Cited by Defendant on acquisition and prima facie case

  • Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 Others
    (2019) eKLR

    Cited by Defendant on acquisition of land for public purpose

  • Bank of Africa Kenya Limited v John Ndung'u Gachara
    [2022] eKLR

    Principles for temporary injunction are sequential; failure on prima facie case ends the application

  • Lucy Wangui Gachara v Minudi Okemba Lore
    [2015] eKLR

    Great circumspection before mandatory injunction at interlocutory stage; granted only to restore status quo

  • Bharat Petroleum Corp Ltd v Haro Chand Sachdeva
    AIR 2003

    Temporary mandatory injunctions only in rare cases with compelling circumstances

  • Kivanga Estates Limited v National Bank of Kenya Limited
    (2017) eKLR

    Striking out pleadings is discretionary and applied sparingly

  • D.T Dibbie & Co. (Kenya) Limited v Muchina
    (1982) eKLR

    Striking out in plain and obvious cases

  • Saudi Arabian Airlines Corporation v Sean Express Services Limited
    (2014) eKLR

    Striking out where no reasonable defence or triable issues

  • Cassam & Another v Sachania & Another
    (Civil Appeal 63 of 1981) (1982) KECA 1 KLR

    Striking out principles

  • Jane Ngonyo Muhia v Abdalla & 3 Others
    (2010) eKLR

    Discretion to review/set aside ex-parte orders

  • Jane Kemunto Mayaka v Municipal Council of Nairobi & 4 Others
    (2006) eKLR

    Discretion to review/set aside ex-parte orders

  • Pithon Waweru Maina v Thiaka Mugiria
    (1983) eKLR

    Wide discretion to vary judgment to avoid injustice, not to assist deliberate obstruction

  • Kenya Electricity Transmission Company Limited v Marula Estate Limited
    (2018) eKLR

    Cited by Defendant on public projects and compensation

  • Maisha Nishike Limited v Commissioner of Lands & 3 Others
    (2011)

    Cited by Defendant on compensation as remedy

  • Nehemiah Charles Omwoyo v Attorney General & 2 others
    [2021] eKLR

    Balance of convenience favours refusing injunction where public project nearly complete

  • Reid Hewett & Co v Joseph
    AIR 1918 CAL

    Costs follow the event

  • Myres v Defries
    (1818) 5 ExD 180

    Costs follow the event

  • Hussein Jan Mohammed & Sons v Twentshe Overseas Trading Co. Limited
    (1967) EA 28

    Costs follow the event

  • Republic v Rosemary Wairimu Munene, Ex-Parte Applicant v Ihururu Dairy Farmers Co-operative Society Limited
    Judicial Review application no. 6 of 2014

    Costs follow the event

  • Jasbir Rai Singh v Tarchalan Singh
    (2014) eKLR

    Costs follow the event; principle compensates the successful party

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act, 2011 over disputes relating to land LR Number MN/VI/3711

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Focus Container Freight Station Limited v Kenya Ports Authority", Case Analysis (2023). Environment & Land Case E052 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18545/eng@2023-06-12

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