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ELCPartially AllowedEnvironment & Land Case E002 of 2023· [2023] KEELC 20606 (KLR)

Denka Limited v Rawraw

Environment and Land Court of Kenya
5 October 2023
LKL. C. Komingoi
1,068 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court protected a registered landowner by stopping a neighbour's fence and trespass pending the full trial.

What this practically means

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Executive summary

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This is a ruling by L.C. Komingoi, J of the Environment and Land Court at Kajiado on a Notice of Motion dated 16th January 2023 by Denka Limited, the plaintiff, seeking a temporary injunction against Kissio Rawraw, the defendant, restraining him from entering, trespassing on, constructing on or interfering with the plaintiff's quiet use and possession of Kajiado/Dalalekutuk/5283 pending hearing of the application and the suit. The application was supported by an affidavit of the plaintiff's director, John Waweru Kangethe, and opposed by a replying affidavit of the defendant, who denied trespass and contended that the root of the plaintiff's title was an illegality determined by the Land Registrar, relying on Dina Management Limited v County Government of Mombasa. The parties canvassed the motion by written submissions. The court framed two issues: whether the application met the threshold for a temporary injunction, and who should bear costs. Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, the court found the plaintiff was the registered owner, that photographs confirmed tampering with the property by erecting a fence, and that a prima facie case with probability of success, irreparable harm and balance of convenience favouring the plaintiff were established. The court allowed the application, issued a temporary injunction restraining the defendant from interfering with the suit property pending determination of the suit, and ordered that costs of the application abide the outcome of the main suit.

Key legal issues

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01

Whether the applicant met the Giella v Cassman Brown threshold for a temporary injunction

Holding

Yes - the applicant, as registered owner, established a prima facie case with probability of success, likely irreparable harm, and balance of convenience in its favour.

Reasoning

The court was satisfied the plaintiff was the registered owner of the suit property, evidenced by a title deed. Photographs annexed confirmed tampering with the property by erecting a fence, prompting a report at Kajiado Police Station. On that basis the court found a prima facie case with probability of success, likely irreparable harm from continued encroachment, and balance of convenience favouring the registered owner, relying on Paul Gitonga Wanjau v Gathuti Tea Factory Limited.

p. 3
02

Who should bear the costs of the application

Holding

Costs of the application were ordered to abide the outcome of the main suit rather than being awarded to either party.

Reasoning

Although the plaintiff sought costs against the defendant, the court declined to make a definitive award at the interlocutory stage, reserving the question of costs until the main suit is determined.

p. 3

Legal principles established

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  • The principles for granting a temporary injunction are those in Giella v Cassman Brown.
  • A registered owner of land facing encroachment who establishes a prima facie case, irreparable harm and balance of convenience is entitled to a temporary injunction.

Court orders

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  1. 1.A temporary injunction restraining the Defendant/Respondent, his agents, servants and employees from entering, trespassing, constructing or in any other manner interfering with the Plaintiff/Applicant's quiet use and possession of LR. No. Kajiado/Dalalekutuk/5283 pending the hearing and determination of the suit.
  2. 2.Costs of the application to abide the outcome of the main suit.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure ActSection 3A

Cases cited (8)

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

    Principles for granting temporary injunction

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

    Temporary injunction principles

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

    Balance of convenience

  • Jeremiah Thuku Nganga & another v John Waithaka Aidan (Suing on behalf of the estate of Aida Wangui Waithaka
    [2020] eKLR

    Balance of convenience

  • Dina Management Limited Vs. County Government of Mombasa & 5 Others
    Supreme Court of Kenya Petition No.8/2021

    Illegality of root of title defeating a claim

  • Giella v Cass man Brown
    [1973] EA 358

    Precedent-setting principles for granting a temporary injunction

  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    (2003) eKLR

    Definition of a prima facie case

  • Paul Gitonga Wanjau v Gathuti Tea factory Limited & others
    [2016] eKLR

    Balance of convenience favouring registered owner

Jurisdiction invoked
Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act (Chapter 21, Laws of Kenya)

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, "Denka Limited v Rawraw", Case Analysis (2023). Environment & Land Case E002 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20606/eng@2023-10-05

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