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Court of AppealDismissedCivil Appeal No. 152 of 2019· [2020] KECA 55 (KLR)

Joshua Abuga & 5 others v Kelvin Kimulu & 3 others [2020] KECA 55 (KLR)

Court of Appeal of Kenya
18 December 2020
2,271 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a judge can grant final-style orders early in a land dispute when the evidence of ownership is overwhelmingly clear.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal (Okwengu, Warsame and Kiage, JJ.A.) against a ruling of the Environment and Land Court at Kisii (Mutungi, J.) delivered on 13th May 2019 in E.L.C. Case No. 220 of 2017. The respondents, suing over Kisii Children's Home, sought a declaration that land parcel LR Kisii Municipality/Block 111/153 belonged to the 3rd respondent, a permanent injunction against the appellants (officials, trustees and agents of the Seventh Day Adventist Church (Millennium)), and eviction. Acting on a court-ordered report of the Land Registrar and the Kisii County Surveyor, the trial judge found the respondents to be rightful owners, that the appellants occupied as licensees, that the licence stood cancelled for inconsistent conduct, and ordered delivery of vacant possession within 90 days - effectively final relief on an interlocutory application. The appellants raised seven grounds contending, principally, that the report did not conform to the court's order, that unadmitted documents were relied upon, and that the judge entered judgment on the main suit while only an interlocutory application was pending, condemning them unheard. The Court of Appeal framed the central question as whether the power to grant interlocutory mandatory injunctions tantamount to final orders lies within a judge's discretion and whether it was correctly exercised. Applying Jaj Super Power, Kenya Breweries vs Okeyo and Kamau Mucuha vs The Ripples Ltd, the Court held that such relief may issue in exceptional cases on a very strong prima facie case, found the Land Registrar's report clear and unequivocal, and held the trial judge had acted judiciously. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Interference with discretionary decisions of the trial court

Holding

The Court of Appeal will not interfere with a trial court's exercise of discretion in granting an equitable remedy unless misdirection, wrong decision or manifest error resulting in injustice is demonstrated.

Reasoning

Discretionary powers belong to the trial judge, and the appellate court's role is not to substitute its own view merely because it would have decided differently. Interference requires demonstration that the trial court misdirected itself, arrived at a wrong decision, or was manifestly wrong in the exercise of discretion resulting in injustice. On the material, the Judge acted on a clear and unequivocal Land Registrar's report and overwhelming documentary support for the respondents' ownership.

p. 3
02

Mandatory injunction on an interlocutory application amounting to final relief

Holding

In exceptional cases the court has discretion to grant interim relief tantamount to final relief, but only where there is a very strong prima facie case.

Reasoning

Drawing on Halsbury's Laws of England as adopted in Kenya Breweries Ltd vs Washington O. Okeyo and the decision in Kamau Mucuha vs The Ripples Ltd, the Court confirmed that mandatory injunctions may issue at the interlocutory stage where the case is clear, the act is simple and easily remedied, or the defendant sought to steal a march. Where the party against whom it is sought is plainly on the wrong, courts act to meet justice without awaiting full trial.

p. 3
03

Application of the principles to the facts and the Land Registrar's report

Holding

The Land Registrar's report was clear and unequivocal; the appellants' letter of allotment was incomplete and for an unsurveyed, unidentifiable plot; the trial judge acted judiciously.

Reasoning

The report, produced pursuant to the trial court's orders delineating boundaries and identifying encroachment, established that the Children's Home stood on LR Kisii Municipality/Block 111/153 and that the appellants' prayer structure was on that parcel. The appellants' allotment letter was incomplete, lacking a PDP or identifiable plot. The documents overwhelmingly supported the respondents as owners, justifying mandatory orders.

p. 3

Legal principles established

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  • An appellate court will not interfere with a trial judge's exercise of discretion on an equitable remedy unless the trial court misdirected itself, arrived at a wrong decision, or was manifestly wrong resulting in injustice.
  • A mandatory injunction may be granted on an interlocutory application in exceptional circumstances, such as where the case is clear, the act is simple and summary, or the defendant attempted to steal a march on the plaintiff.
  • Where interim relief tantamount to final relief is sought, there must be a very strong prima facie case.
  • A party should not be allowed to retain a position of advantage obtained through a planned and blatant unlawful act.

Court orders

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  1. 1.The appeal fails and is dismissed
  2. 2.Costs of the appeal awarded to the respondents

Authorities

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Cases cited (4)

  • Republic vs. County Land Registrar Kisii County & 2 Others exparte Nora Bochaberi Oruochi
    [2018] eKLR
  • Jaj Super Power Cash and Carry Ltd vs. Nairobi City Council and 2 Others
    Civil Appeal No. 111 of 2002
  • Kenya Breweries Limited & Tembo Cooperative Savings and Credit Society Limited vs. Washington O. Okeyo
    Civil Appeal No. 332 of 2000
  • Kamau Mucuha vs. The Ripples Ltd
    Civil Application No. Nai. 186 of 1992 (unreported)
On appeal from
Environment and Land Court at Kisii
E.L.C. Case No. 220 of 2017
Jurisdiction invoked
First appeal to the Court of Appeal under the appellate structure of the Constitution and applicable statute (not expressly invoked in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joshua Abuga & 5 others v Kelvin Kimulu & 3 others [2020] KECA 55 (KLR)", Case Analysis (2020). Civil Appeal No. 152 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/55/eng@2020-12-18

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