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Court of AppealPartially AllowedCivil Appeal No 73 of 1985

Kibiy Arap Yego v Emily Tuiya w/o Tirop Arusei & another [1986] KECA 78 (KLR)

Court of Appeal
21 February 1986
HAHancoxNYNyarangiPLPlatt
1,813 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Nakuru against a ruling of the High Court at Eldoret (VV Patel J) of May 16, 1985, granting the respondents, as defendants in the underlying suit, a temporary injunction and an eviction order against the appellant, the registered owner of land parcel Nandi/Lessos/324. The dispute concerned competing claims to the same land: the appellant claimed purchase and registration in 1979 with Land Control Board consent; the respondents alleged the transfer and consent were procured by fraud and counterclaimed for declaration of devolution as successors to Emily's deceased husband. The Court of Appeal, in a single authored judgment by Hancox JA concurred in by Nyarangi JA and Platt Ag JA, held that the High Court judge had gone beyond the terms of the chamber summons under Order XXXIX rule 1 by making a mandatory eviction order on an interlocutory injunction application, that such mandatory orders are rare because they may dispose of the suit finally, and that there was insufficient material to determine what the status quo was, counsel having conceded the eviction order was wrong. The court followed Thompson v Park on the status quo doctrine. The appeal was allowed, the eviction order set aside, and the case remitted to the High Court for reconsideration of the status quo and proper hearing, with liberty to file fresh affidavits. No orders as to costs were made, costs not having been sought in the Memorandum of Appeal.

Key legal issues

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01

Whether an eviction order could properly be granted on an application for a temporary injunction

Holding

No - the order was mandatory in effect, exceeded the summons and was not sanctioned by Order XXXIX rule 1

Reasoning

The respondents' chamber summons sought only to restrain the appellant from alienating, ploughing, fencing or taking possession pending trial. An order that the registered proprietor vacate and deliver possession was mandatory relief, not a restraint, and such orders at interlocutory stage are rare because they may dispose of the suit finally. Counsel for the respondents conceded the judge went beyond the application.

p. 3
02

What status quo should be preserved pending trial

Holding

The record did not disclose which status quo existed, so the judge lacked sufficient material to decide it

Reasoning

Each party claimed a different status quo: forcible entry by the appellant versus possession as registered proprietor. Thompson v Park shows a court will not preserve a state of affairs created by illegal acts. Because the affidavits and pleadings were unclear, and the extract from the proprietorship register was not produced, the matter had to be remitted for fresh evidence and judicial determination of the status quo.

p. 2
03

Weight of the registered proprietor's title at the interlocutory stage

Holding

The appellant was prima facie the registered proprietor and an eviction order should not have been granted against him on the available material

Reasoning

A certificate of search showed registration as from March 20, 1984, and the plaint alleged registration at filing. Although fraud was alleged in the defence and counterclaim, and the appellant may not have been first registered owner, that dispute could not be resolved summarily by evicting the registered owner on an injunction application.

p. 2

Legal principles established

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  • A litigant cannot wrongfully bring about a state of affairs and then seek an injunction to preserve that state of affairs as the status quo
  • A mandatory order should not be made on an interlocutory application for a temporary injunction where the material is insufficient and it may dispose of the suit finally
  • An interlocutory order must not exceed the terms of the application; Order XXXIX rule 1 does not sanction an eviction order on a temporary injunction application

Court orders

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  1. 1.Appeal allowed
  2. 2.Eviction order set aside
  3. 3.Case remitted to the High Court for proper hearing and determination, with liberty to the parties to file fresh affidavits on the status quo
  4. 4.No orders as to costs of the appeal
On appeal from
High Court of Kenya
Civil Case No 29 of 1983
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over a High Court interlocutory ruling

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, "Kibiy Arap Yego v Emily Tuiya w/o Tirop Arusei & another [1986] KECA 78 (KLR)", Case Analysis (1986). Civil Appeal No 73 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/78/eng@1986-02-21

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