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ELCDismissedEnvironment & Land Miscellaneous Case E190 of 2022· [2023] KEELC 21472 (KLR)

Yejoka Garden Restaurant Limited v Staroot Residency

Environment and Land Court
9 November 2023
OAO. A. Angote
2,802 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Applicant, Yejoka Garden Restaurant Limited, through its Director Gebrehiwot Daniel Hadgu, moved the Environment and Land Court by Notice of Motion dated 20th September 2022 seeking a temporary injunction restraining Staroot Residency from entering, trespassing on or interfering with land parcel L.R No 1/181/R-Nairobi, plus an order for enforcement by the OCS Kilimani and costs. The Applicant alleged that the Respondent's construction on the neighbouring L.R No 1/183 Kilimani encroached on its land through windows opening onto the property, blockage of natural light, a sewer line passing through the suit property, and tampering with electricity poles. The Respondent, through its Manager Zhang Chi, denied the allegations, asserted it was the registered owner of L.R No 1/183 constructing within its boundaries with all approvals, produced its title, boundary photographs and an EIA Licence, and contended the Applicant had previously raised identical claims in a withdrawn NET appeal and had made material non-disclosure. Applying Giella v Cassman Brown as elaborated in Nguruman Limited v Jan Bonde Nielsen and Mrao Ltd v First American Bank, and the burden-of-proof provisions of the Evidence Act, O. A. Angote, J held that although the Applicant's ownership of the suit property was undisputed, it had annexed no material demonstrating the extent of its land or any encroachment, and so failed to establish a prima facie case. No irreparable injury not compensable by damages was shown, particularly regarding natural light. The Motion was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Applicant established a prima facie case of encroachment

Holding

No prima facie case was established; the Applicant produced no material showing the extent of its land or any encroachment

Reasoning

Although the Applicant is the registered proprietor of L.R No 1/181/R and the Respondent of L.R No 1/183, the Applicant annexed no document showing the extent of its land or demonstrating encroachment by windows, sewer lines or interference with electricity poles. At the interlocutory stage the Applicant need not fully prove its case but must at least show a right that has been threatened with violation, which it failed to do.

p. 5
02

Whether the Applicant demonstrated irreparable injury

Holding

No irreparable harm was shown; no evidence that natural light would be blocked

Reasoning

The Applicant did not allude to any harm incapable of adequate compensation by damages, and presented no evidence that it would be deprived of natural light. Following Nguruman, speculative injury or unfounded fear does not suffice; the burden was on the Applicant to demonstrate the nature and extent of the injury, which it did not discharge.

p. 6

Legal principles established

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  • An applicant for an interlocutory injunction must establish a prima facie case, irreparable injury and balance of convenience sequentially, without leap-frogging
  • If no prima facie case is established, irreparable injury and balance of convenience need not be considered
  • He who alleges must prove, per Sections 107, 109 and 112 of the Evidence Act

Court orders

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  1. 1.The Notice of Motion dated 20th September, 2022 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 3A, 3B
  • Civil Procedure Rules, 2010Order 2 Rule 13; Order 40 Rule 1
  • Evidence ActSections 107, 109, 112

Cases cited (4)

  • Giella v Cassman Brown
    (1973) EA 358

    Conditions for grant of an interlocutory injunction: prima facie case, irreparable injury, balance of convenience

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

    Sequential application of the three injunction conditions; definition and burden of proving a prima facie case; irreparable injury

  • Kenya Commercial Finance Co. Ltd V. Afraha Education Society
    [2001] Vol. 1 EA 86

    The three conditions are separate, distinct hurdles to be surmounted sequentially

  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR

    Definition of a prima facie case in civil cases

Jurisdiction invoked
Sections 3A and 3B of the Civil Procedure Act; Orders 2 Rule 13 and 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, "Yejoka Garden Restaurant Limited v Staroot Residency", Case Analysis (2023). Environment & Land Miscellaneous Case E190 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21472/eng@2023-11-09

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