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ELCPartially AllowedCivil Suit No 38 of 2023· [2024] KEELC 4522 (KLR)

Amaka Development Limited v Kenya Rural Roads Authority & another (Civil Suit 38 of 2023) [2024] KEELC 4522 (KLR)

Environment and Land Court
18 March 2024
8,305 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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A Mombasa court stopped a Sh2.1 billion road project from crossing private land because the owner's title could not be ignored without proper compulsory acquisition.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Mombasa (Hon. Justice L. L. Naikuni) on the Plaintiff/Applicant's Notice of Motion dated 27th October 2023, seeking an interlocutory injunction to restrain the Defendants from constructing the Bamburi-Mwakirunge-Kaloleni Road over its parcel Plot No. MN/II/10445 in Mwakirunge, Mombasa County. The Applicant, a registered proprietor, alleged the construction had encroached 186 metres onto its land without consent or compulsory acquisition, relying on a surveyor's report and official searches showing no road reserve. The 1st Defendant, Kenya Rural Roads Authority, opposed, contending the road had existed since 1965 as a public road, was gazetted in 2016 as Class C101, and that its 2007 survey and deed plan had irregularly omitted the 40-metre road reserve, which it was seeking to have corrected; it also invoked the public interest, the socio-economic importance of the road and the risk of loss of public funds of over Kshs 2.1 billion. Framing two issues - whether the application met the Order 40 Rule 1 threshold for a temporary injunction, and costs - the court applied the Giella and Nguruman principles sequentially. It found the Applicant had established a prima facie case based on its registered title, that the permanent nature of a road meant damages would be inadequate, and that the balance of convenience favoured preserving the suit property pending trial. The application was allowed, an interlocutory injunction issued against construction on or interference with the plot pending the suit's determination, the suit set down for pre-trial conference and hearing, and costs placed in the cause.

Key legal issues

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01

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

Holding

Yes. As the registered owner of Plot No. MN/II/10445 with a certificate of title, the Applicant demonstrated an apparent infringement of a proprietary right by the alleged road construction without consent or compulsory acquisition.

Reasoning

Guided by the Mrao definition, the court found the Applicant's certificate of title and surveyor's report showing 186 metres of encroachment sufficient to show a right apparently infringed, calling for rebuttal. At the interlocutory stage the court does not make final findings on contested facts but weighs the relative strength of each party's case, and the Applicant's title established a protectable proprietary interest.

p. 13
02

Whether the Applicant would suffer irreparable injury not adequately compensable by damages

Holding

Yes. The permanent nature of a road and the inability to undo its construction meant damages would not be an adequate remedy.

Reasoning

The court accepted that if the road were completed through the suit land the harm would be irreversible and not measurable or curable by monetary compensation. The Applicant, as legal proprietor with a right to vacant possession, had shown actual, substantial and demonstrable injury warranting the equitable remedy of an injunction pending trial.

p. 14
03

Where the balance of convenience lies

Holding

The balance tilts in favour of granting the injunction; there is a lower risk of injustice in preserving the suit land pending trial.

Reasoning

The court held that the competing factual and documentary claims about the road's historical existence and the deed plan irregularities could only be resolved at a full trial with empirical documentary and oral evidence. Pending that interrogation, opting for the lower risk of injustice meant preserving the status quo by restraining construction over the suit property.

p. 15

Legal principles established

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  • The three Giella conditions for an interlocutory injunction must all be satisfied and applied sequentially as separate, distinct and logical hurdles.
  • A registered proprietor of land has a protectable proprietary interest sufficient to establish a prima facie case at the interlocutory stage.
  • In an interlocutory injunction application the court does not make final findings on contested facts but weighs the relative strength of the parties' cases.
  • Costs follow the event under Section 27(1) of the Civil Procedure Act, but the court retains discretion, including to place costs in the cause.

Court orders

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  1. 1.The Notice of Motion application dated 27th October, 2023 is found to have merit and is allowed.
  2. 2.Pending the hearing and final determination of the suit, an interlocutory injunction restrains the Defendants, their agents, workers, servants, employees and/or hirelings from constructing or continuing to construct the Bamburi-Mwakirunge-Kaloleni Road on or over Plot No. MN/II/10445 in Mwakirunge area, Mombasa County, or from entering or interfering with the plot in any manner.
  3. 3.The suit to be heard on 18th July, 2024, with a mention on 4th June, 2024 for an intensive Pre-Trial Conference under Order 11 of the Civil Procedure Rules, 2010.
  4. 4.Costs of the application to be in the cause.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63; Section 27(1)
  • Civil Procedure Rules, 2010Order 40 Rules 1 and 2; Order 11
  • Kenya Roads ActSection 23
  • Land Control Act (Cap. 302)Section 6
  • Evidence ActSection 107

Cases cited (17)

  • East Africa Industries Ltd v Trufoods Limited
    (1972) EA 420
  • Giella v Cassman Brown
    (1973) EA 358
  • MRAO v First American Bank of Kenya Limited & 2 Others
    (2003) eKLR
  • Muriungi Kanoru Jeremiah v Stephen Ungu M'mwirabua
    (2015) eKLR
  • Yellow Horse Inns Limited v Nduachi Company Limited & 2 Others
    (2017) eKLR
  • Paul Gitonga Wanjau v Gathuthi Tea Factory Co. Ltd & 2 Others
    (2016)
  • Priscilla Ndunge Kiluu v Machakos County Government & 2 Others
    (2018) eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Kenya Commercial Finance Co. Limited v Afraha Education Society
    [2001] Vol. 1 EA 86
  • Mbuthia v Jimba Credit Corporation Ltd
    [1988] KLR 1
  • Edwin Kamau Muniu v Barclays Bank of Kenya Ltd
  • Pius Kipchirchir Kogo
  • Amir Suleiman v Amboseli Resort Limited
    [2004] eKLR
  • Robert Mugo wa Karanja v Ecobank (Kenya) Limited & Another
    [2019] eKLR
  • Harun Mutwiri v Nairobi City County Government
    [2018] eKLR
  • Kenya Union of Commercial, Food and Allied Workers v Bidco Africa Limited & Another
    [2015] eKLR
  • Hussein Muhumed Sirat v Attorney General & Another
    [2017] eKLR
Jurisdiction invoked
Order 40 Rules 1 and 2 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act (Cap. 21)

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, "Amaka Development Limited v Kenya Rural Roads Authority & another (Civil Suit 38 of 2023) [2024] KEELC 4522 (KLR)", Case Analysis (2024). Civil Suit No 38 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4522/eng@2024-03-18

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