[2015] KEELC 638 (KLR)
The court found that the applicant was made aware of the existence of the easement both in the sale agreement and by a subsequent letter, and did not deny receipt of this information. The construction complained of was being undertaken on a separate plot (4420/1) and not on the applicant's land. The applicant failed...
Source-derived case information.
- Citation
- [2015] KEELC 638 (KLR)
- Parties
- Plaintiff: Mawingo Constructions 2010 Limited; Defendant: Mombasa Water Products Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 288 of 2014
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- application dismissed with costs to the defendant
- Judges
- AA Omollo
- Legal Topics
- Easements and Rights of Way, Sale of Land, Boundary Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mawingo Constructions 2010 Limited
Plaintiff
Mombasa Water Products Limited
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the defendant's grant of an easement after the sale constituted an alteration of the sale agreement.
- 2 Whether the applicant is entitled to a temporary injunction restraining the defendant from constructing a water drainage on the alleged easement.
- 3 Whether the applicant was aware of the existence of the easement at the time of sale.
Ratio Decidendi
The court found that the applicant was made aware of the existence of the easement both in the sale agreement and by a subsequent letter, and did not deny receipt of this information. The construction complained of was being undertaken on a separate plot (4420/1) and not on the applicant's land. The applicant failed to demonstrate that the defendant's actions constituted an alteration of the agreement or that the requirements for granting an injunction as set out in Giella v Cassman Brown were met. Any encroachment would amount to a boundary dispute rather than an illegal grant or registration of an easement. The applicant also failed to contest the defendant's averments regarding...
Court Disposition
application dismissed with costs to the defendant
Orders
- The application for injunction is dismissed.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC. NO. 288 OF 2014
MAWINGO CONSTRUCTIONS 2010 LIMITED .................................... PLAINTIFF
- V E R S U S -
MOMBASA WATER PRODUCTS LIMITED ............................ DEFENDANTS
RULING
1. This is an application seeking temporary orders of injunction in terms of prayer 4 and 5 of the motion dated 17th November, 2014. The motion is supported by the grounds on the face of it and the affidavit of Clive Erskine which I have read.
2. The application is opposed by the defendant by his replying affidavit. I have also had an opportunity to read it and need not reproduce its contents here.
3. The advocates made oral submissions to argue the motion. Mr. Kamami for the applicant submits that the defendant sold to the applicant several plots which were consolidated and given a number MN/5046. The applicant is already put in possession. The applicant's complaint is that the defendant granted an easement which runs across part of the plots sold to him after the agreement was drawn. It is his submission that by this, the defendant altered the agreement and he will suffer great prejudice. That the easement runs horizontally along the boundaries of the suit property.
4. Mr. Ratemo for the defendants admitted the sale transaction but submits that the properties were sold minus the road reserve. It is the defendant's case that the easement is comprised in plot registered as number 4420/1 and the applicant was informed of the existence of the access point. Further that clause 9 of the agreement provided for easement and right of way. The defendant submits that he has sold plots downstream to people who need to use the easement. It is his case that the applicant blocking the road has caused the people downstream to suffer. Mr. Ratemo submitted that the collapsed walls were put by Ocean Freight Ltd and they do not belong to the applicant. The defendant admitted constructing water drainage on the existing passage. He urged the court to dismiss the motion.
5. It is clear the defendant sold the suit plot to the applicant. The applicant states that the access road runs horizontally along his plot and the construction being undertaken is eating into his plot.The respondent on his part submits the access road is independent of the applicant's land as the construction is being undertaken on Plot no. 4420/1. The respondent's case is also that the applicant was made aware of the existence of this easement in Clause 9 of the sale agreement and by a letter dated 10th September 2014.
6. The applicant has not denied receipt of the letter dated 10th September 2014. In the sale agreement annexed as "CE1" in the applicant's affidavit, clause 9. 1reads the property is sold subject to
"(a) all subsisting easements, quasi easement and rights of way (if any) equities, quasi - equities and overriding interests."
This clause made the applicant aware of the matters affecting the property at the time of sale. I agree with the defendant that he cannot turn around and say it is an alteration of the agreement by the defendant to build the water drainage on the existing passage. In any event, if the defendant is encroaching on the applicant's portion of the land during this construction then the issue becomes a boundary dispute and not an illegal grant of and or registration of an easement as pleaded on the grounds on the face of the motion. The applicant has not denied the walls demolished and shown in the photographs belongs to Ocean Freight as submitted by the defendant. He did not file further affidavit to contest the said averments contained in the replying affidavit.
7. In light of the foregoing circumstances I do find that the prayers sought in the motion as pleaded are not supported by facts. The application has not met any of the principles set in the renowned case of Giella vs Cassman Brown (1973) E.A. for granting injunctions. The applicant did not submit that damage if any to be suffered if the defendant continues with the construction of the water drainage cannot be compensated by an award of damages. Consequently I find the motion to be without merit and dismiss it with costs to the defendant.
Dated and delivered in open court at Mombasa this 26th day of February, 2015.
A. OMOLLO
JUDGE
26. 2.2015