Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedEnvironment & Land Case 13 of 2023· [2023] KEELC 19251 (KLR)

John Sakaja & 2 others v Nyokabi Mariga & 2 others

Environment and Land Court of Kenya
10 August 2023
FNFred Nyagaka
5,048 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

#

A Kenyan land court blocked landowners from interfering with a public road reserve, protecting access for dozens of families until the case is fully heard.

What this practically means

#

Executive summary

#
This is a ruling on the Plaintiffs' Notice of Motion dated 07/03/2023 seeking a temporary injunction restraining the Defendants from interfering with an area reserved for excision to expand an existing access road on parcels L.R. No. 2073/14/1, L.R. No. 2073/13/1 and LR No. 2073/13/2 in Trans Nzoia. The Plaintiffs, relying on a 1952 Government survey map, alleged the road was to be 12 metres wide but had been narrowed to 6 metres through the Defendants' removal of beacons, ploughing, cultivation and leasing of the reserve, impeding access for some 50 families. Only the 3rd Defendant opposed, denying any reserve or beacon removal, asserting an unchallenged 6-metre road in use for over 40 years, questioning the 2nd and 3rd Plaintiffs' standing, alleging non-disclosure of the related Kitale ELC No. 4 of 2021 (George Hopf) suit over the same road, and raising sub judice and exhaustion objections. Applying the Giella v Cassman Brown test as restated in Nguruman Limited, the court found a prima facie case from the 3rd Defendant's own admission that beacons existed and had been tampered with, held that closure or narrowing of the road would cause irreparable injury not compensable in damages, and found the balance of convenience favoured public use of the road reserve. The application succeeded in its entirety. The court issued the temporary injunction, permitted the Defendants only to harvest existing crops this season, ordered a Government survey of the road reserve and beacons within 30 days with a report to court, directed exchange of trial bundles, and awarded costs of the application against the 3rd Respondent alone.

Key legal issues

#
01

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

Holding

Yes - the existence of beacons demarcating the road reserve was admitted on oath, and related litigation over the same road supported the applicants' case.

Reasoning

The court found it not in dispute that the parties own the respective parcels and that an access road of about six metres exists. The 3rd Defendant's supplementary affidavit admitted tampering with beacons' location, showing beacons existed demarcating the road of access. The related cases Kitale ELC Misc. No. 2 of 2016 and Kitale ELC No. 4 of 2021 touching the same road reinforced the prima facie case.

p. 7
02

Whether the applicants would suffer irreparable injury not compensable by damages

Holding

Yes - continued encroachment could close or narrow the road, causing losses not easily compensated by damages.

Reasoning

The court reasoned that if the alleged activities were not stopped, the road could be closed or narrowed, causing accidents, loss of lives or property, and hindering transport of food crops and movement in emergencies - injuries not easily compensable in damages. It stressed respect for property interests, public and private.

03

Where the balance of convenience lies

Holding

It tilts toward continued public use of the road and reserve as public property rather than private benefit.

Reasoning

The court held that public good surpasses private narrow interests, and the balance of convenience favours preservation of the road reserve as public property rather than allowing its conversion to benefit private interests.

p. 8

Legal principles established

#
  • Temporary injunctions are granted on the sequential three-tier Giella test: prima facie case, irreparable injury not compensable in damages, and balance of convenience where in doubt.
  • The three Giella conditions are separate, distinct and sequential hurdles which the applicant must surmount in turn.
  • He who alleges a fact must prove it, per Section 107 of the Evidence Act.
  • Article 159(2)(d) does not whitewash procedural infractions; procedural law must not be ignored or slighted.

Court orders

#
  1. 1.Temporary injunction issued against the Defendants/Respondents, their agents, servants, employees and/or assigns from further interfering with or dealing in any way with the reserved area meant for excision to expand the existing access road on parcels L.R. No. 2073/14/1, L.R. No. 2073/13/1 and LR No. 2073/13/2 until hearing and determination of the suit
  2. 2.Defendants, their servants and/or agents permitted only to harvest crops already planted on the reserved area this season, after which they vacate until determination of the suit
  3. 3.Parties ordered to engage the Surveyor or Office of Survey in charge of Trans Nzoia County to survey, determine the boundary and beacons of the road of access, the reserved area and any encroachment on the listed parcels within 30 days, with the office filing a report in court; each party at liberty to engage a private surveyor at own cost
  4. 4.Parties directed to prepare and exchange trial bundles within 30 days for mention on 25/09/2023 for compliance
  5. 5.3rd Respondent to bear the costs of the application

Authorities

#

Legislation

  • Civil Procedure ActSections 3, 3A and 63(e)
  • Civil Procedure RulesOrder 40 Rule 1; Order 51 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Evidence ActSection 107
  • Public Roads and Roads of Access ActSection 2

Cases cited (6)

  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358

    Three-tier sequential test for temporary injunctions: prima facie case, irreparable loss, balance of convenience

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

    Restatement that the three injunction conditions are separate, distinct and sequential hurdles

  • Kahoho v Secretary General, EACJ
    Application No. 5 of 2012

    Discretion to grant injunctions must be exercised judiciously

  • Daniel Kipkemoi Siele v Kapsasian Primary School & 2 others
    [2016] eKLR

    Grant or refusal of injunction is discretionary but must be exercised judiciously

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

    Definition of irreparable injury as injury not adequately compensable in damages

  • George Hopf v Director of Survey and Cabinet Secretary Ministry of Housing and Urban Development
    (Kitale) ELC No. 4 of 2021

    Related pending suit over the same access road; cited on sub judice and non-disclosure

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; application under Sections 3, 3A, 63(e) of the Civil Procedure Act and Order 40 Rules 1 and 51 Rule 1 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "John Sakaja & 2 others v Nyokabi Mariga & 2 others", Case Analysis (2023). Environment & Land Case 13 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19251/eng@2023-08-10

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