Joyce Chebichy Kimosop v Eliud Kipchoge Sugut & 5 others [2017] KECA 321 (KLR)

The Court reiterated the limited circumstances in which an appellate court may interfere with judicial discretion, invoking Mbogo v Shah. It found that the Judge gave considerable weight to the applicant's use of an Originating Summons under section 17 of the Married Women's Property Act and overlooked her independent claim that the transaction was void for want of land control board consent under section 6 of the Land Control Act. That omission vitiated the conclusion that no prima facie case existed, justifying interference and setting aside the ruling.

Although the respondents exhibited a copy of land control board consent, the minutes of the Moiben/Ainabkoi Land Control Board of 2nd February 2012 produced by the appellant did not reflect the transaction. This was considered alongside the 5th respondent's admission that he was led not to appear before the board. The Court held that this is a serious question going to the heart of section 6 of the Land Control Act, sufficient to establish a prima facie case, leaving the innocent purchaser plea for the trial court.

The Court accepted that the grant or refusal of an interlocutory injunction is governed by the Giella v Cassman Brown principles and that the learned Judge had applied them. However, because the Judge's conclusion on the prima facie case rested on an incomplete consideration of the pleadings, it was wrong. The Court expressly declined to consider the remaining Giella limbs, noting it was unnecessary to determine whether absence of consent would render the transaction void for all purposes.