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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 97 of 2018

Kenya Railways Corporation v Anne Wambui Gatheru & another [2019] KECA 750 (KLR)

Court of Appeal of Kenya
10 May 2019
1,891 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Court of Appeal ruled you cannot get an injunction against someone who hasn't actually interfered with your property — you must prove each restrained party's role.

What this practically means

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Executive summary

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The respondents, registered owners of parcels Kajiado/Ntashart/263 and 265, obtained from the Environment and Land Court at Kajiado (Ochieng J.) a temporary injunction restraining Kenya Railways Corporation and China Communications Construction Company Ltd from trespassing on or interfering with the land, on the basis that they had shown a prima facie case, irreparable harm and balance of convenience. Kenya Railways appealed, contending that no trespass by it was proved and none of the Giella conditions was satisfied. The Court of Appeal (Githinji, Sichale and Odek JJ.A) allowed the appeal. It noted that the trial judge's own ruling recorded that the appellant denied agency over the 2nd defendant and that the plaintiffs' allegations were uncontroverted, and that ownership and boundaries of the suit parcels were matters for full trial; on those findings the respondents had no prima facie case against the appellant. The Court held it was preposterous to restrain a party who had not interfered with the respondents' rights, especially where counsel for the respondents attributed the trespass to the contractor and no nexus with the appellant was established. It further noted that the Government had gazetted compulsory acquisition of the land, overtaking the trespass claim. The Court set aside the orders of 19th February 2018 against the appellant, awarded the appellant the costs of the appeal, and held that the 2nd defendant, having not participated in the appeal, was entitled to no costs. The judgment binds lower courts to the principle that injunctions may not issue against parties shown to have infringed no rights.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents established a prima facie case against the appellant warranting a temporary injunction
  2. 2.Whether there was a nexus between the appellant and the 2nd defendant's alleged acts of trespass
  3. 3.Whether the trial judge applied the correct conditions precedent for the grant of an injunction

Key legal issues

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01

Prima facie case for temporary injunction

Holding

An injunction may only issue where the conditions precedent in Giella v Cassman Brown are met against the party to be restrained; the respondents failed to establish a prima facie case against the appellant

Reasoning

The trial judge's own ruling recorded that the appellant denied being principal of the 2nd defendant and that the plaintiffs' allegations were uncontroverted, and that ownership and boundaries were matters for full trial. If allegations were uncontroverted and title unresolved, no prima facie case with probability of success existed against the appellant, making the injunction against it unsustainable.

p. 3
02

Nexus between appellant and the alleged trespass

Holding

No nexus was established between the appellant and the 2nd defendant, so the injunction could not stand against the appellant

Reasoning

The respondents' own counsel attributed the trespass to the 2nd defendant (the contractor), while the appellant denied trespass and denied agency over the contractor. The uncontroverted replying affidavit showed discrepancies between title acreages and the Registry Index Map and that the contractor had abandoned the road. Without an agency nexus, no injunctive relief could lie against the appellant.

p. 2
03

Effect of compulsory acquisition on the trespass claim

Holding

The trespass claim had been overtaken by the gazetted compulsory acquisition process, rendering the injunction futile

Reasoning

Counsel for the respondents conceded that although no notice of compulsory acquisition had been issued when the suit was filed, the Government thereafter gazetted the intended compulsory acquisition and the process was ongoing. The Court treated this as overtaking the trespass claim and as an independent ground for setting aside the injunction against the appellant.

p. 3

Legal principles established

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  • A temporary injunction cannot issue against a party who has not been shown to have infringed the applicant's rights; an applicant must establish a prima facie case against each party restrained
  • Where ownership and boundaries of suit land are in dispute and cannot be ascertained on the documents, no prima facie case with likelihood of success is established for injunction purposes

Court orders

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  1. 1.The orders of the trial court of 19th February 2018 against the appellant are set aside
  2. 2.Costs of the appeal to the appellant
  3. 3.The 2nd defendant, not having taken part in the appeal, is not entitled to any costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court at Kajiado
Kajiado ELC Case No. 929 of 2017
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act over an appeal from the Environment and Land Court

Relief refused

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Continuation of the temporary injunction against the appellant

The appellant was not shown to have trespassed on the respondents' land and the conditions precedent for an injunction were not met

p. 3

Costs against the 2nd defendant

The 2nd defendant did not participate in the appeal

p. 3

Costs

Costs of this appeal to the appellant; the 2nd defendant is not entitled to any costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We think it was preposterous to grant an order of injunction against the appellant when it was clear that the appellant had not interfered with respondents' rights to the two parcels of land.
p. 3injunction against a non-trespassing party
it is clear that the respondents had not established a prima facie case with likelihood of success as against the appellant
p. 3prima facie case threshold
the respondents' claim of trespass has been overtaken by the process of compulsory acquisition. Accordingly we set aside the orders of the Court of 19 th February, 2019 against the appellant. Costs of this appeal to the appellant.
p. 3disposition - setting aside injunction and costs

Issues in the judgment

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minor

The judgment states the ruling was delivered on 19th February 2018 but the dispositional paragraph refers to setting aside orders 'of the Court of 19 th February, 2019', an apparent typographical discrepancy

minor

The Court's recital of the motion describes the supporting affidavit as dated '14 th November 2011' although the motion and all other references are to 14th November 2017

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, "Kenya Railways Corporation v Anne Wambui Gatheru & another [2019] KECA 750 (KLR)", Case Analysis (2019). Civil Appeal No. 97 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/750/eng@2019-05-10

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