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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 975 (KLR)

Eames v Lugwemwandazi & 2 others (Environment & Land Case E007 of 2023) [2024] KEELC 975 (KLR)

Environment and Land Court
27 February 2024
1,130 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court protected a leaseholder's vacant, vandalized land by ordering everyone to keep the situation unchanged until the case is fully decided.

What this practically means

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Executive summary

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The plaintiff/applicant moved the Environment and Land Court at Mombasa by an application dated 20th December 2023 seeking temporary injunctions restraining the defendants from entering, demolishing structures on, constructing on, or otherwise interfering with the suit property known as Mombasa/Mainland South/Block I/338 at Shelly Beach, Likoni, and from interfering with her quiet enjoyment and possession, pending the hearing and determination of the suit. The application was served but undefended; despite service evidenced by an affidavit of service sworn on 9th January 2024, none of the defendants filed a response. The sole issue framed by the court was whether a temporary injunction could issue. Applying the Nguruman Limited v Jan Bonde Nielsen restatement of the Giella v Cassman Brown principles, the court required the plaintiff sequentially to establish a prima facie case, irreparable injury, and the balance of convenience. The plaintiff produced a certificate of lease dated 24th November 2011 for a 50-year leasehold commencing 1st January 2004, which under Section 26 of the Land Registration Act constitutes prima facie evidence of absolute and indefeasible ownership. The only objection on record was a letter from an advocate for the 3rd defendant asserting over 20 years' occupation said to have been invited by one Lucy Wanjiru (deceased); the court held this was a matter for trial. On irreparable injury, the plaintiff alleged that the County Government of Mombasa claimed her leasehold had expired and conspired with professional squatters; photographs showed the property vacant, the buildings demolished and the perimeter wall brought down. The court found the balance of convenience favoured the plaintiff and allowed the application, ordering that the status quo be maintained pending the hearing and determination of the case, with costs of the application in the cause. Judgment was delivered at Mombasa on 27th February 2024 by N.A. Matheka, Judge.

Key legal issues

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01

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

Holding

The court found that the plaintiff, as registered proprietor holding a certificate of lease, had demonstrated a prima facie case; the defendants' claim of long occupation raised by an advocate's letter was a matter for trial.

Reasoning

The plaintiff produced a certificate of lease dated 24th November 2011 for a 50-year leasehold commencing 1st January 2004, protected by Section 26 of the Land Registration Act as prima facie evidence of indefeasible ownership. The only objection on record was a letter from an advocate for the 3rd defendant alleging over 20 years' occupation and invitation by one Lucy Wanjiru (deceased). The court held that the plaintiff's allegation that counsel referred to her, and the defendants' occupation claim, could only be resolved at trial.

p. 2
02

Whether the plaintiff would suffer irreparable injury not compensable in damages

Holding

The court was satisfied that irreparable injury was demonstrated given the demolished perimeter wall, the vacant and vandalized state of the property, and the risk of invasion by 'professional' squatters allegedly conspiring with the County Government of Mombasa.

Reasoning

Relying on Pius Kipchirchir Kogo v Frank Kimeli Tenai, the court applied the test that irreparable injury is one that cannot be adequately compensated in damages. The plaintiff alleged that the County Government of Mombasa claimed her leasehold had expired and conspired with professional squatters; photographs showed the property vacant, the buildings demolished and vandalized, and the perimeter wall already brought down, supporting apprehension of invasion if the property were left unsecured.

p. 3
03

Whether the balance of convenience favoured the plaintiff

Holding

The court found that the balance of convenience tilted in favour of the plaintiff.

Reasoning

Applying the Pius Kipchirchir Kogo formulation, the court reasoned that if an injunction were withheld and the suit ultimately succeeded, the inconvenience to the plaintiff would be greater than any inconvenience to the defendants if the injunction were granted but the suit dismissed. Given that the property was vacant and vulnerable to invasion by squatters, the comparative mischief from withholding the injunction outweighed that from granting it.

p. 3

Legal principles established

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  • An applicant for an interlocutory injunction must sequentially establish a prima facie case, demonstrate irreparable injury, and show that the balance of convenience is in his favour.
  • A certificate of title issued upon registration is prima facie evidence that the named proprietor is the absolute and indefeasible owner, subject only to challenge on grounds of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition (Section 26, Land Registration Act).

Court orders

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  1. 1.That the status quo be maintained pending the hearing and determination of this case
  2. 2.That costs of the application be in the cause

Authorities

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Legislation

  • Land Registration ActSection 26

Cases cited (3)

  • Giella v Cassman Brown
    (1973) EA 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 (2014) eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    (2018) eKLR
Jurisdiction invoked
Inherent jurisdiction to grant temporary injunctions pending hearing and determination of the suit (application dated 20th December 2023 under unstated provisions)

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, "Eames v Lugwemwandazi & 2 others (Environment & Land Case E007 of 2023) [2024] KEELC 975 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/975/eng@2024-02-27

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