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ELCDismissedMalindi HCCC No. 26 of 2014· [2014] KEELC 285 (KLR)

Elija Barasa Galido v Amon Petero Buya [2014] KEELC 285 (KLR)

Environment and Land Court
25 July 2014
OAO. A. Angote
822 words in judgment
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The bottom line

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A Kenyan court refused to stop a farmer occupying disputed Tana River land because the losing party appealed by filing a new suit instead of a proper appeal.

What this practically means

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Executive summary

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This was a ruling on the Plaintiff's interlocutory application dated 20 February 2014, brought under Order 40 of the Civil Procedure Rules, seeking an interim injunction restraining the Defendant, his employees, servants and agents from entering, farming, clearing bushes or dealing with unregistered community land known as Ghabia in Hola, Tana River County, pending the hearing of the suit. The matter had been consolidated with Malindi HCCC No. 1A of 2014, but the application was brought by the Plaintiff in HCCC No. 26 of 2014. Both parties claimed ownership of the land from time immemorial. The court noted that the dispute had previously been determined by the defunct Land Disputes Tribunal, which on 11 October 2011 held that the Defendant was entitled to continue occupying the disputed parcel and directed a surveyor to re-establish the boundary from the middle of the dried-up river. That award was adopted verbatim as an order of the court by the Senior Resident Magistrate on 5 February 2014, with aggrieved parties advised to appeal to the High Court within 30 days. Instead of appealing, the Plaintiffs filed fresh suits. Holding that, absent an appeal or stay of the subsisting Tribunal decision, the Plaintiff had neither established a prima facie case with chances of success nor demonstrated irreparable loss given the Defendant's continued occupation, the court dismissed the application with costs on 25 July 2014.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

No prima facie case established because an adopted Tribunal award permitting the Defendant to occupy the land stands unreversed.

Reasoning

The dispute over the unregistered community land had already been determined by the defunct Land Disputes Tribunal, whose award of 11 October 2011 was adopted as a court order by the Senior Resident Magistrate on 5 February 2014. The Magistrate expressly advised aggrieved parties to appeal within 30 days. Instead of appealing, the Plaintiff filed fresh suits. With the Tribunal decision subsisting and no appeal or stay, the Plaintiff's claim could not meet the prima facie test.

p. 2
02

Irreparable loss

Holding

No irreparable loss shown since the Defendant is already in occupation of the suit property.

Reasoning

The second limb of the injunction test required the Plaintiff to demonstrate harm that damages could not compensate. Given that the Defendant was, by the adopted Tribunal award, entitled to and actually was occupying the disputed parcel, an injunction would merely alter the existing state of occupation, and the Plaintiff identified no specific loss beyond that.

p. 2

Legal principles established

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  • Where a Land Disputes Tribunal decision has been adopted as an order of the court and allowed the respondent to occupy the disputed land, a party who neither appeals nor obtains a stay cannot obtain an interim injunction over the same land.

Court orders

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  1. 1.The Plaintiff's Application dated 20th February, 2014 is dismissed
  2. 2.Costs of the Application awarded to the Defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 40
  • Land Disputes Tribunal Actnull
Jurisdiction invoked
Order 40 of the Civil Procedure Rules (injunction application in original suit)

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, "Elija Barasa Galido v Amon Petero Buya [2014] KEELC 285 (KLR)", Case Analysis (2014). Malindi HCCC No. 26 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/285/eng@2014-07-25

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