Daudi Kiptugen v Commissioner of Lands & 4 Others [2013] KEELC 48 (KLR)

Environment and Land Court

3 October 2013

MSMunyao Sila

683 words in judgment

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The bottom line

An Eldoret court ruled that even a landowner with a lease certificate must obey court orders preserving disputed land until ownership is finally decided.

What this practically means

Executive summary

This is a ruling of the Environment and Land Court at Eldoret on an application dated 1st August 2013 filed by the 4th defendant in a suit commenced in 2011 over land parcel Eldoret Municipality Block 7/154. The 4th defendant sought to restrain the plaintiff from trespassing on, remaining on, selling, transferring or otherwise interfering with its possession of the suit land, alleging the plaintiff had demolished structures and fenced the land. The plaintiff, who holds a Certificate of Lease and claims the 1st, 2nd and 5th defendants illegally issued another lease to the 4th defendant, opposed the application, asserting he had always been in possession, that he demolished the structures on a directive of the County of Uasin Gishu, and that the court had no jurisdiction to restrain an owner from using his land. The court held that the suit land is under litigation and that even the plaintiff's title is in issue; a litigant cannot resist the court's injunctive powers by asserting ownership, and the court has a duty to preserve the subject matter of litigation. The court observed the plaintiff may have breached the consent status quo order recorded on 11 July 2012. It issued preservation orders: the plaintiff to have charge of the land solely for preservation, barred from developing or utilizing it; an inhibition registered against any disposition; and costs in the cause.

Key legal issues

Whether a party claiming to be the rightful owner can object to the court's power to issue injunctions against him

Holding

No. The plaintiff's assertion of ownership does not oust the court's jurisdiction to issue interim orders; land under litigation is subject to the court's preservation powers, and the plaintiff's own title is in issue in the suit.

Reasoning

The plaintiff claimed a Certificate of Lease and argued the court could not restrain him from using his land. The court held that where title is itself in dispute, the property is under litigation and the court must preserve it. Interim orders preserve the subject matter pending determination of ownership, and a party must obey them regardless of his own view of his case.

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Whether the plaintiff breached the consent status quo order by demolishing structures on the suit land

Holding

Possibly yes; the court found the 4th defendant entitled to complain about the demolition.

Reasoning

The parties had recorded a consent on 11 July 2012 maintaining status quo. The 4th defendant alleged the plaintiff demolished structures and fenced the land; the plaintiff said he acted on a County of Uasin Gishu directive. The court observed that the demolition may well have breached the status quo and justified the 4th defendant's complaint, but resolved the application through preservation orders rather than sanction.

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Legal principles established

A party cannot resist an injunction of the court on the basis of their own belief in the strength of their title; parties must obey interim orders
A court has a duty to issue interim orders to preserve the subject matter of litigation

Court orders

1.The plaintiff to have charge of the suit land pending hearing and determination of the suit for purposes only of preserving and keeping it safe and secure
2.The plaintiff shall not develop or utilize the suit land until final determination of the suit
3.No party to sell or in any other way deal with the suit land; an order of inhibition issued inhibiting entry of any disposition on the register of the suit land
4.Costs of the application to be costs in the cause

Jurisdiction invoked: Inherent jurisdiction of the High Court/Environment and Land Court to issue interim orders preserving the subject matter of litigation

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Daudi Kiptugen v Commissioner of Lands & 4 Others [2013] KEELC 48 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/48/eng@2013-10-03

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