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ELCPartially AllowedELC No. E065 of 2024

Grove Development Limited v Makongo t/a La Gusta Restaurant (Environment & Land Case E065 of 2024) [2025] KEELC 3313 (KLR)

Environment and Land Court
8 April 2025
9,855 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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A Kwale court stopped a Diani restaurant from clearing land it occupied without the owner's consent, and refused to throw out the owner's trespass case.

What this practically means

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Executive summary

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The Environment and Land Court at Kwale (L. L. Naikuni, J) determined two interlocutory applications in a trespass suit. Grove Development Limited, registered proprietor of Kwale/Diani Beach Blocks 1299 and 1302–1334 (subdivided from Kwale/Diani Beach Block/20, leasehold bought in 1995 and extended in 2019), sought a temporary injunction against Ali Bakari Makongo T/A La Gusta Restaurant, alleging that the defendant entered the land, cut mature trees, cleared vegetation and constructed permanent and semi-permanent structures without consent. The defendant applied under Order 2 Rule 15 for dismissal of the suit, contending he was a mere tenant under a tenancy agreement with representatives of clans claiming reversionary ownership under trusteeship of the Kwale County Government, so no cause of action lay against him. The plaintiff countered that its cause of action was trespass, not ownership, and that ownership was already settled in prior litigation, making the ownership issue res judicata; it also noted the tenancy agreement referenced a different parcel (Kwale/Diani Beach Block/194). Framing three issues, the court held that striking out is a draconian remedy sparingly exercised, and the plaint raised triable issues, dismissing the defendant's application. Applying Giella v Cassman Brown, the court found a prima facie case, irreparable injury incapable of monetary compensation, and the balance of convenience favouring preservation of the property, and granted a temporary injunction pending hearing of the suit, with police enforcement directed through the OCS Diani. Costs of both applications were awarded to the plaintiff, and pre-trial and hearing dates fixed.

Questions the Court framed

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

  1. 1.Whether the Defendant/Respondent has made out a case under Order 2 Rule 15 of the Civil Procedure Rules, 2010 as pleaded in the Notice of Motion application dated 13th November, 2024
  2. 2.Whether the Notice of Motion dated 15th October, 2024 meets the threshold required of a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules, 2010
  3. 3.Who will bear the costs of the Notices of Motion applications dated 15th October, 2024 and 13th November, 2024

Key legal issues

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01

Striking out the suit under Order 2 Rule 15 for want of a reasonable cause of action

Holding

The application failed. The Plaintiff's suit, founded on trespass against a party admittedly occupying and developing the land without consent, raises triable issues; the Defendant's status as a mere tenant does not defeat a trespass cause of action, and striking out would drive the Plaintiff from the seat of justice.

Reasoning

The court reviewed the settled principles in D.T. Dobie, Yaya Towers, Co-operative Merchant Bank and Uchumi Supermarkets: striking out is draconian and of last resort. The plaint seeks specific reliefs capable of being granted on evidence and is not hopeless, frivolous or vexatious. Mere challenge to the soundness of the suit is not a ground for striking out; non-joinder cannot be cured by striking out pleadings.

p. 13
02

Temporary injunction under Order 40 Rule 1 - prima facie case

Holding

The Plaintiff, registered proprietor of the suit plots since 1995 with lease extended in 2019, demonstrated a prima facie case: the Defendant admittedly entered, cleared vegetation, cut trees and constructed without the Plaintiff's knowledge, consent or authority.

Reasoning

Applying the Mrao definition, the material showed an apparent infringement of the Plaintiff's proprietary right calling for rebuttal. The court noted at the interlocutory stage it weighs relative strength of the parties' cases without making final findings of contested facts.

p. 15
03

Irreparable injury and balance of convenience

Holding

The Plaintiff satisfied the second and third Giella limbs: the injury could not be compensated in damages and the balance of convenience favoured preserving the suit property pending trial.

Reasoning

The suit property was the Applicant's home and continued cutting of mature trees and construction threatened its preferred use; damages would be inadequate. Weighing the comparative mischief, the court found a lower risk of injustice in granting the injunction than refusing it, preserving the status quo until the suit is heard on its merits.

p. 17
04

Costs

Holding

Costs follow the event under Section 27(1) of the Civil Procedure Act; the successful Plaintiff was awarded costs of both applications.

Reasoning

The court applied the settled principle that the successful party is typically entitled to costs unless compelling reasons exist otherwise, and elected that the Defendant pay costs of both applications.

p. 18

Legal principles established

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  • Striking out of pleadings is a draconian, discretionary remedy exercised sparingly; a suit with a semblance of a cause of action must proceed to trial
  • All three Giella conditions must be satisfied sequentially for an interlocutory injunction

Court orders

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  1. 1.The Notice of Motion application dated 15th October, 2024 be and is hereby found to have merit and is allowed
  2. 2.The Notice of Motion application dated 13th November, 2024 be and is hereby found to lack merit, hence dismissed entirely
  3. 3.An order of temporary injunction restraining the Defendant/Respondent, his agents, servants, employees and anybody claiming through or jointly with him from damaging, alienating, charging, mortgaging, or degrading the vegetation or interfering with the Plaintiff's possession and proprietary rights over plots known as Kwale/Diani Beach Blocks/1299, 1302 to 1334 (originally Kwale/Diani Beach Block/20) pending hearing and determination of the suit
  4. 4.Mention on 28th July, 2025 for Pre-trial Conference pursuant to Order 11 of the Civil Procedure Rules, 2010 and hearing on 30th October, 2025
  5. 5.An order directing the Officer Commanding Station, Diani Police Station, to enforce the orders of the Court
  6. 6.The Plaintiff/Applicant shall have the costs of both Notices of Motion applications, to be paid by the Defendant/Respondent

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 40 and 165 of the Constitution of Kenya 2010; Section 13 of the Environment and Land Court Act No. 19 of 2011; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Cap. 21; Order 40 Rule 1 of the Civil Procedure Rules, 2010

Relief refused

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Dismissal of the Plaintiff's suit for want of a reasonable cause of action (Defendant's application dated 13th November, 2024)

The power to strike out is draconian and sparingly exercised; the Plaintiff's suit raises triable issues and cannot be said to be hopeless, frivolous or vexatious

p. 13

Costs

The Plaintiff/Applicant shall have the costs of the Notices of Motion applications dated 15th October, 2024 and 13th November, 2024, to be paid by the Defendant/Respondent.

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.

That an order of Temporary injunction do issue restraining the Defendant/Respondent by himself his agents, servants employees and or anybody claiming through or jointly with him from damaging, alienating, charging, mortgaging, or degrading the vegetation and or in any way interfering with the Plaintifi's possession and proprietary rights over plots known as Kwale/Diani Beach Blocks/ 1299,1302, 1303, 1304, 1305, 1306, 1307, 1308, 1309, 1310, 1311, 1312, 1313, 1314, 1315, 1316, 1317, 1318, 1319, 1320, 1321, 1322, 1323, 1324, 1325, 1326, 1327, 1328, 1329, 1330, 1331, 1332, 1333 and 1334 which were originally Kwale/ Diani Beach Block/20) pending hearing and determination of this suit.
p. 18Final orders - temporary injunction
That the Notice of Motion application dated 13th November, 2024 be and is hereby found to lack merit, hence dismissed entirely.
p. 18Final orders - dismissal of striking-out application
That an order do and is hereby issued directing oficer Commanding Station Diani Police Station to enforce the orders of this Court.
p. 19Final orders - enforcement by OCS Diani
That the Plaintifi/Applicant shall have the costs of the Notices of Motion applications dated 15th October, 2024 and 13th November, 2024 to be paid by the Defendant/Respondent.
p. 19Costs order
the court should always allow a party the latitude to have his case heard and decided on merit unless it is so hopeless that even an amendment cannot rescue it.
p. 13Striking out principles

Issues in the judgment

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minor

The plot list in the judgment repeatedly includes 1331 twice (e.g. '1330, 1331, 1331, 1332') and states 35 plots while listing fewer

minor

The judgment refers to Section 27(1) of the 'Civil Procedure Rules' Cap. 21 although it is a provision of the Civil Procedure Act

minor

The supporting affidavit is described as dated 13th January, 2024 in submissions but 13th January, 2025 in the body

minor

The ruling signature block is dated 8th April 2025 but the text records the ruling date being reserved on '31st March, 2025 2025' with a typographical error

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, "Grove Development Limited v Makongo t/a La Gusta Restaurant (Environment & Land Case E065 of 2024) [2025] KEELC 3313 (KLR)", Case Analysis (2025). ELC No. E065 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3313/eng@2025-04-08

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