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ELCAllowedNot stated in the judgment (Meru ELC; application dated January 24, 2024)· [2024] KEELC 1722 (KLR)

Marete v Kiogora (Environment & Land Case E001 of 2024) [2024] KEELC 1722 (KLR)

Environment and Land Court
20 March 2024
1,224 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Meru blocked a landowner's neighbour from trespassing or building on her plot because she proved ownership and the risk of harm.

What this practically means

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Executive summary

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The plaintiff, Elizabeth Kathure Marete, moved the Environment and Land Court at Meru by a notice of application dated January 24, 2024 seeking a temporary injunction to restrain the defendant, his agents, servants or employees from trespassing into, entering, building, excavating, subdividing, selling, leasing, fencing off or otherwise interfering with L.R Meru Municipality Block II/312 pending the hearing and determination of the suit. She averred she was the registered owner of the land, first registered in her husband's name in 1992, with permanent and semi-permanent developments and rental tenants, and that on December 21, 2023 the respondent encroached on and damaged property including napier grass, bananas, avocado and moringa trees and fenced off a portion. Police declined to act without a court order, a demand letter was ignored, and an agricultural officer assessed the damage at Kshs.74,139/=. The defendant was served but filed no replying affidavit. The court, per Hon. C K Nzili J, restated the Giella test for temporary injunctions, drawing on Mrao Ltd v First American Bank, Nguruman Limited v Jan Nelson Bonde, Pius Kipchirchir Kogo v Frank Kimeli Tenai, Paul Gitonga Wanjau v Gathuthi Tea Factory and Amir Suleiman v Amboseli Resort Ltd, and on the requirement of exceptional circumstances for interlocutory mandatory injunctions per Joseph Kaloki and Kenya Breweries v Okeyo. The court found the applicant's ownership undisputed, the encroachment demonstrated, and the balance of convenience in her favour, notwithstanding the absence of a land registrar's or surveyor's boundary report. The application was allowed; the plaintiff was to execute an undertaking as to damages of Kshs.150,000/= within seven days, failing which the orders would stand vacated, with mention on May 20, 2024 for case conference. No costs order was made.

Key legal issues

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01

Whether the applicant met the Giella criteria for a temporary injunction

Holding

Yes; the applicant's ownership was undisputed and the defendant's encroachment was demonstrated, while the defendant did not oppose the application despite service

Reasoning

The applicant annexed a lease, official search, lease agreements, demand notice, agricultural damage assessment and photographs. Her right of ownership was not disputed, the respondent was duly notified, service was acknowledged by affidavit, and police efforts to stop the acts were futile. No replying affidavit was filed despite service and status quo orders.

p. 2
02

Whether the balance of convenience favours granting the injunction

Holding

Yes; the inconvenience to the applicant in withholding the injunction exceeds that to the respondent

Reasoning

The court noted the absence of a land registrar's or surveyor's report on boundaries, but held that the respondent's failure to file a replying affidavit despite service, and the late, unopposed review application filed by a law firm not on record, meant the greater prejudice would fall on the applicant if the injunction were withheld.

p. 3

Legal principles established

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  • A party seeking a temporary injunction must establish a prima facie case with a probability of success, irreparable loss and damage, and that the balance of convenience tilts in their favour
  • A mandatory injunction is granted at the interlocutory stage only in exceptional circumstances

Court orders

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  1. 1.Temporary injunction restraining the defendant, his agents or employees from trespassing into, entering, building, excavating, subdividing, selling, leasing, fencing off or in any other way interfering with Meru Municipality Block II/312 pending hearing and determination of the suit
  2. 2.Plaintiff to execute an undertaking as to damages of Kshs.150,000/= within seven days, failing which the injunction orders shall stand vacated
  3. 3.Mention on May 20, 2024 for case conference

Authorities

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Cases cited (7)

  • Mrao Ltd v First American Bank
    (2003) eKLR
  • Nguruman Limited v Jan Nelson Bonde
    (2014) eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    (2018) eKLR
  • Paul Gitonga Wanjau v Gathuthi Tea Factory W Ltd & others
    (2016) eKLR
  • Amir Suleiman v Amboseli Resort Ltd
    (2004) eKLR
  • Joseph Kaloki t/a Royal Family Assembly v. Nancy Atieno Ouma
    (2020) eKLR
  • Kenya Breweries Limited and another v. Washington Okeyo
    (2002) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land L.R Meru Municipality Block II/312 (specific provision not stated in the judgment)

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, "Marete v Kiogora (Environment & Land Case E001 of 2024) [2024] KEELC 1722 (KLR)", Case Analysis (2024). Not stated in the judgment (Meru ELC; application dated January 24, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1722/eng@2024-03-20

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