[2020] KEELC 790 (KLR)
The court found that the plaintiff had established a prima facie case by providing uncontroverted evidence of ownership and ongoing destruction by the defendants. The absence of any response or appearance by the defendants meant the plaintiff's evidence was not challenged. The court held that the destruction of the...
Source-derived case information.
- Citation
- [2020] KEELC 790 (KLR)
- Parties
- Plaintiff: Taita Hills & Salt Lick Wildlife Resort Limited; Defendant: Josephat Mvoi Mwangombe & 8 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 111 of 2020
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- application for injunction allowed
- Legal Topics
- Injunctive Relief, Land Ownership, Trespass, Environmental Protection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Taita Hills & Salt Lick Wildlife Resort Limited
Plaintiff
Josephat Mvoi Mwangombe & 8 Others
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for the grant of an interlocutory injunction.
- 2 Whether the defendants' actions constitute unlawful entry and destruction of the plaintiff's property.
- 3 Whether irreparable harm would be caused to the plaintiff and the environment if the injunction is not granted.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case by providing uncontroverted evidence of ownership and ongoing destruction by the defendants. The absence of any response or appearance by the defendants meant the plaintiff's evidence was not challenged. The court held that the destruction of the sanctuary posed a risk of irreparable harm to both the plaintiff and the environment, which could not be adequately compensated by damages. Consequently, the court determined that the balance of convenience favored the grant of an interlocutory injunction to preserve the property pending the hearing and determination of the suit.
Court Disposition
application for injunction allowed
Orders
- The defendants are restrained from entering, digging, extracting, excavating soil and stone material, clearing vegetation, or in any other manner interfering with LR No. 13007 (Taita Hills and Salt Lick Wildlife Sanctuary) pending the hearing and determination of the suit.
- The plaintiff is awarded the costs of the application.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT MOMBASA
ELC NO. 111 OF 2020
TAITA HILLS & SALT LICK WILDLIFE RESORT LIMITED .........PLAINTIFF
VERSUS
JOSEPHAT MVOI MWANGOMBE & 8 OTHERS ................... DEFENDANTS
RULING
(Application for injunction; plaintiff claiming that defendants have invaded its land and are causing destruction; no reply to the application; application allowed)
1. This suit was commenced through a plaint which was filed on 1 September 2020. The plaintiff operates a game sanctuary within the land parcel LR No. 13007 commonly known as Taita Hills and Salt Lick Wildlife Sanctuary. The plaintiff avers that the defendants occupy properties adjacent to the sanctuary. It is the case of the plaintiff that the defendants, on 25 June 2020, forcibly entered the plaintiff’s sanctuary, proceeded to drive and position heavy machinery in it, and started digging massive trenches and pits, and destroying the delicate vegetation therein. In the suit, the plaintiff wishes inter alia to have the defendants permanently restrained from the sanctuary.
2. Together with the plaint, the plaintiff filed an application seeking to have the defendants restrained from the suit property by an order of an injunction pending the hearing and determination of this case. The application was served upon the defendants but the defendants did not respond to it and indeed they have not even entered appearance in this suit.
3. I have gone through the application and the supporting affidavit of Abdulaziz Abdalla. He has annexed title to the suit property. He has also annexed photographs showing the activities of the defendants. These are not controverted. I therefore have no reason not to believe that the defendants have unlawfully entered the plaintiff’s land and are causing destruction to it. In essence the plaintiff has demonstrated a prima facie case. If an injunction is not issued, it is clear to me that the sanctuary may be permanently destroyed which will cause, not only to the plaintiff, but also the environment, irreparable loss.
4. I therefore allow the application for injunction. Thus, pending the hearing and determination of this suit, the defendants are hereby restrained from entering, digging, extracting, excavating soil and stone material, clearing vegetation, or in any other manner whatsoever, interfere with the property LR No. 13007 commonly known as Taita Hills and Salt Lick Wildlife Sanctuary. The plaintiff will also have the costs of this application.
5. Orders accordingly.
DATED AND DELIVERED THIS 12 DAY OF OCTOBER 2020
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT OF KENYA
AT MOMBASA