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JudgmentJOSIAH ONYANCHA VS IRENE OMBOGA & 2 OTHERS6 min read

JOSIAH ONYANCHA VS IRENE OMBOGA & 2 OTHERS

Environment and Land Court at Nyamira Environment and Land Court · · Dalmas Ohungo


  1. Proceedings in this matter commenced in the Environment and Land Court at Kisii when the Plaintiff filed Plaint dated 19th August 2024. The matter was later transferred to this Court, hence its current case number. The Plaintiff averred in the Plaint that he was the registered proprietor of parcel of land number Nyaribari Chache/B/B/Boburia/6924 (the suit property) and that the Defendants who were carrying out construction in an adjoining parcel had trespassed into the suit property, erected timber posts, damaged his property and denied him the right to a clean environment.
  2. The Plaintiff therefore prayed for judgment against the Defendants jointly and severally for special damages of KShs 236,670, general damages for trespass, nuisance, infringement on his right to a clean environment, infringement on his right to free movement on the suit property, and lastly, general damages for annoyance and mental torture. He further sought a permanent injunction to restrain the Defendants from trespassing into the suit property and allowing debris and falling objects from their construction activities to escape into the suit property. Lastly, he sought costs of the suit and interest.
  3. Alongside the Plaint, the Plaintiff also filed Notice of Motion dated 19th August 2024, which is the subject of this ruling. Just like the Plaint which has ten prayers, the application has fourteen prayers. Both the Plaint and the application could have benefitted from better drafting, to attain brevity in the prayers.
  4. Prayer numbers 1 to 6 in the application are spent. What remain for determination are prayer numbers 7 to 14. In summary, the Plaintiff is seeking an interlocutory injunction to restrain the Defendants, their servants, agents or anyone authorised by them or claiming under them from trespassing into the suit property, damaging property therein, allowing debris or other objects to escape therein, subjecting him, his servants or agents to annoyance or endangering his safety. He also prayed that the OCS Kisii Central Police Station to enforce compliance with any orders issued by the Court and that he be awarded costs.
  5. The application is supported by an affidavit sworn by the Plaintiff. He deposed that he was the registered proprietor of the suit property and that the Defendants trespassed into the suit property on 26th April 2024 and erected timber posts, damaged kei-apple and chain-link fence while carrying out construction. That the Defendants continued to trespass into the suit property and that he reported the matter to the police. He added that the Defendants continued to allow debris and falling objects from their construction activities to fall into the suit property thereby damaging his roofs and denying him the right to live in a clean environment and hampering his movement. That despite warning them through a demand letter sent on 3rd May 2024, the Defendants had continued with the offending activities. He annexed copies of a title deed, photographs, police Occurrence Book (OB) details and a demand letter.
  6. The Defendants opposed the application through a replying affidavit sworn by the First Defendant. She admitted that the applicant was her immediate neighbour but denied the allegations of trespass, erection of timber posts, damage to kei-apple and chain-link fence and falling objects. She added that construction of her building had been ongoing in compliance with the National Environment Management Authority (NEMA) requirements and with net covering all round until the Plaintiff decided to set up his house adjacent to her wall. That the Plaintiff had previously made reports to the police against her and her employees but was advised to be a good neighbour. She annexed photographs.
  7. The Applicant swore and filed a supplementary affidavit, whose contents I have noted.
  8. The application was canvassed through written submissions. The Applicant filed submissions dated 14th October 2024. He took issue with an “Amended Replying Affidavit” which the Defendants had filed and urged the court to strike it out for having violated Order 1 rule 13 (1) and (2) of the Civil Procedure Rules. Relying on the cases of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR, Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR and Peter K. Waweru v Republic [2006] eKLR, the Applicant argued that he had established grounds to warrant granting him all the orders that he sought.
  9. On their part, the Defendants filed written submissions dated 11th October 2024 wherein they argued that the application is without merit and that there had been no trespass as alleged. They further argued that the Applicant is a person who likes complaining even on issues that can be resolved amicably and that they had followed building regulations. Relying on the cases of Mburu v Kibara & 2 others [2022] KEELC 3226 (KLR) and Bandari Investments & Co Ltd v Martin Chiponda & 139 others [2021] eKLR, they contended that the Applicant is not entitled to the orders sought.
  10. I have considered the application, the affidavits and the submissions. On the question of whether the amended replying affidavit should be struck out for non-compliance with Order 1 rule 13 (1) and (2) of the Civil Procedure Rules, I note that nothing really turns on that issue since the Defendants filed another replying affidavit sworn by the First Defendant on 12th September 2024. In any case, there is no procedure that allows amendment of an affidavit. The Plaintiff having sued the Defendants jointly and the Defendants having jointly filed Memorandum of Appearance dated 12th September 2024 through a firm of advocates, he cannot turn around and dispute the Defendants’ capacity to jointly defend themselves in so far as the application is concerned.
  11. Regarding the merits of the application, principles applicable while considering an application for interlocutory injunction are that the applicant must establish a prima facie case with a probability of success. Even if he succeeds on that first limb, an injunction will not issue if damages can be an adequate compensation. Finally, if the court is in doubt as to whether damages will be an adequate compensation then the court will determine the matter on a balance of convenience. All these conditions and stages are to be applied as separate, distinct, and logical hurdles which the applicant is expected to surmount sequentially. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. See Giella –vs- Cassman Brown & Co Ltd [1973] EA 358 and Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR.
  12. There is no dispute that the Plaintiff is the proprietor of the suit property and that the First Defendant is carrying out construction on an adjacent parcel. The Plaintiff’s complaint is that that the Defendants trespassed into the suit property, erected timber posts, damaged kei-apple and chain-link fence and have allowed objects from their construction activities to fall into the suit property thereby damaging his roofs. There are also complaints that the trespass is continuing. The Defendants have denied the allegations. I note however that the First Defendant stated that they took precautions by covering the roof to the Plaintiff’s latrine with cartons to protect it from falling debris.
  13. The purpose of an interlocutory injunction is to protect a litigant from an irreparable damage. That is why such an injunction will not issue if damages can be an adequate compensation. While it is true that there is some threat to the Plaintiff emanating from the Defendants’ construction activities, a reading of the prayers in the Plaint reveals that the Plaintiff’s claim is a monetary claim for damages, save for two prayers for permanent injunctions. Some of the damages have even been quantified by the Plaintiff in the Plaint and the demand letter dated 3rd May 2024. It follows therefore that the Plaintiff can be compensated by an award of damages in respect of all the threats of which he has complained. The damages are easily ascertainable. There is no suggestion that the Defendants are incapable of paying damages. In those circumstances, an interlocutory injunction cannot issue. Needless to state, there is no license to the Defendants to breach the law. They will be held to account upon trial, if they are found culpable. Based on the material before the Court, the Plaintiff has not satisfied the test for granting an interlocutory injunction.
  14. I find no merit in Notice of Motion dated 19th August 2024, and I therefore dismiss it. Costs shall be in the cause.

Dated, signed, and delivered at Nyamira, this 13th day of March 2025.

Delivered in the presence of:

Mr Biyogo for the Plaintiff

Ms Ondande for the Defendants

Court Assistant: B Kerubo

    JOSIAH ONYANCHA VS IRENE OMBOGA & 2 OTHERS JOSIAH ONYANCHA VS IRENE OMBOGA & 2 OTHERS