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ELCPartially Allowed· [2024] KEELC 6118 (KLR)

Ngummo (Kenya) Limited v Kiagi (Environment & Land Case E032 of 2024) [2024] KEELC 6118 (KLR)

Environment and Land Court
26 September 2024
NMN. A. Matheka
2,096 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 ordered a beachfront owner to clear debris blocking an apartment business's beach access road, while the main case continues.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Mombasa (N.A. Matheka, J) delivered on 26th September 2024 on a Notice of Motion dated 29th April 2024 brought under Sections 1A and 34 of the Civil Procedure Act and Order 40 Rules 1 and 2 of the Civil Procedure Rules, 2010. The Plaintiff, registered owner of LR No. Mainland North/Section 1/1722 and operator of Swahili Beach Apartments, sought temporary and mandatory injunctions restraining the Defendant, owner of beachfront plot LR No. MN/I/1724, from encroaching on, blocking, using or dumping on the access road linking the Plaintiff's property to the beach, and compelling removal of demolition debris from that road. The Defendant denied blocking the access, described it as a mere footpath, disputed the Plaintiff's current ownership for want of an official search, and relied on a dumping permit from the County Government of Mombasa. Applying the Giella v Cassman Brown and Nguruman principles, the court found the Plaintiff had attached title documents establishing a prima facie case; that the inability of the Plaintiff's hospitality clients to access the beach demonstrated irreparable loss; and that the balance of convenience favoured the Plaintiff because there was a lower risk of injustice in granting the orders at the interlocutory stage, the court not having heard the matter on its merits. The court issued a mandatory injunction compelling the Defendant to clear and remove debris and materials from the access road, and ordered costs of the application to be in the cause. The restraining prayers were not expressly granted and the substantive suit remains pending.

Key legal issues

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01

Whether the Plaintiff established a prima facie case

Holding

Yes - the Plaintiff attached documents of title to the suit property and showed an apparently infringed right of access

Reasoning

The court applied the Giella v Cassman Brown and Nguruman tests. The Plaintiff produced copies of title documents to LR No. MN/I/1722 and deponed that the Defendant's demolition and dumping had blocked the common access road to the beach. On that material the court concluded the Plaintiff had established a prima facie case with a right apparently infringed.

p. 4
02

Whether irreparable injury would be occasioned if the injunction is not granted

Holding

Yes - inability to access and use the suit property constitutes sufficient demonstration of irreparable loss

Reasoning

The Plaintiff operates a hospitality business, Swahili Beach Apartments, whose clients and patrons could not freely enjoy the beach because the access road was blocked. The court held this inability to access and use the property could not be adequately compensated in damages.

p. 3
03

Where the balance of convenience lies

Holding

The balance tilts in favour of the Plaintiff as there is a lower risk of injustice in granting the injunction at this interlocutory stage

Reasoning

The Plaintiff insisted the access road was blocked while the Defendant denied it, claiming it was only a footpath, and also relied on a County Government dumping permit. Since the court had not had the opportunity to consider the matter on its merits, it opted for the lower risk of injustice, which lay in granting the orders.

p. 4

Legal principles established

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  • The applicant for an interlocutory injunction must sequentially satisfy a prima facie case, irreparable injury, and the balance of convenience
  • A prima facie case in civil matters is one showing an apparently infringed legal right calling for an explanation or rebuttal
  • Where the court has not heard the matter on its merits, the lower risk of injustice favours granting the injunction

Court orders

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  1. 1.Pending hearing and determination of the suit, a mandatory injunction issued compelling the Defendant to clear and remove the debris, materials and/or any other items from the access road linking the Plaintiff's property Land Reference No. Mainland North/Section 1/1722 to the beach
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 34
  • Civil Procedure Rules, 2010Order 40 Rules 1 and 2

Cases cited (6)

  • Giella vs Cassman Brown (1973) EA 358
    (1973) EA 358
  • Nguruman Limited versus Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR
    CA No. 77 of 2012 (2014) eKLR
  • Mrao Ltd vs First American Bank of Kenya Ltd (2003) EKLR
    (2003) eKLR
  • Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) eKLR
    (2018) eKLR
  • Paul Gitonga Wanjau vs Gathuthis Tea Factor Company Ltd & 2 others (2016) eKLR
    (2016) eKLR
  • Amir Suleiman vs Amboseli Resort Limited (2004) eKLR
    (2004) eKLR
Jurisdiction invoked
Sections 1A and 34 of the Civil Procedure Act and Order 40 Rules 1 and 2 of the Civil Procedure Rules, 2010

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, "Ngummo (Kenya) Limited v Kiagi (Environment & Land Case E032 of 2024) [2024] KEELC 6118 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6118/eng@2024-09-26

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