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ELCDismissedNot stated in judgment· [2024] KEELC 3932 (KLR)

Kibondori v Keror (Environment & Land Case E024 of 2024) [2024] KEELC 3932 (KLR)

Environment and Land Court
16 May 2024
AOA O Ombwayo
533 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who consents to someone occupying and developing his land cannot use a court injunction to eject them later.

What this practically means

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Executive summary

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The plaintiff, Charles I. Onyancha Kibondori, sued the defendant, Ann D Keror, seeking a permanent injunction restraining her from trespassing on land parcel Nakuru/Olenguruone/Kiptagich/1158, vacant possession, eviction, general damages for trespass and specific damages of Kshs 1,500,000. Together with the plaint he moved for a temporary injunction restraining the defendant from entering, occupying, developing, harvesting, selling, transferring, charging or leasing the property pending trial. The defendant, though served, filed only a replying affidavit dated 5th April 2024 in which she denied encroachment, asserting she was on the land pursuant to an arrangement to exploit it. The court noted the existence of a signed agreement obliging the plaintiff to compensate the defendant, which the plaintiff had not disclosed to the court. Applying the settled principles in Giella v Cassman Brown as restated in Nguruman Limited v Jan Bonde Nielsen, the judge found the respondent in possession and extensive development of the property with the plaintiff's consent, with the plaintiff even paying her a sum of money to enable her utilise the property. The plaintiff therefore failed to establish that the defendant was a trespasser, failed to demonstrate irreparable harm, and the injunction sought would effectively operate as an eviction of the defendant. The application for temporary injunction was dismissed with costs to the defendant. The main suit remains pending.

Key legal issues

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01

Prima facie case - trespass

Holding

The applicant failed to show the respondent is a trespasser; the respondent is in possession and has developed the land with the applicant's consent, and the applicant has been paying her a sum of money

Reasoning

The court found the parties had a signed agreement and an arrangement under which the respondent exploits the land, with the applicant compensating her. Possession with the owner's consent negates trespass, so the first Giella/Nguruman hurdle was not surmounted.

p. 1
02

Irreparable harm and balance of convenience

Holding

The applicant did not demonstrate irreparable harm; on the contrary, granting the injunction would amount to evicting the respondent

Reasoning

The court weighed the second and third Nguruman limbs and found them against the applicant. Since the injunction would operate as an eviction of a party in possession by consent, the balance of convenience favoured refusal.

p. 2

Legal principles established

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  • An applicant for an interlocutory injunction must sequentially satisfy prima facie case, irreparable injury, and balance of convenience as separate hurdles
  • An interlocutory injunction that would effectively evict a party in lawful possession with the owner's consent should not be granted

Court orders

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  1. 1.The application for temporary injunction is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Cases cited (2)

  • Giella v Cassman Brown
    (1973) EA 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to land parcel Nakuru/Olenguruone/Kiptagich/1158

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, "Kibondori v Keror (Environment & Land Case E024 of 2024) [2024] KEELC 3932 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3932/eng@2024-05-16

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