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ELCOtherNot stated in the judgment· [2014] KEELC 392 (KLR)

Katana Kahindi Masha v Karisa Wanje Masha & 2 others [2014] KEELC 392 (KLR)

Environment and Land Court
16 May 2014
OAO. A. Angote
689 words in judgment
View original judgmentRead on Kenya Law Watch case
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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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The Plaintiff, owner of an unregistered 5-acre parcel at Lango Baya, Kilifi County, applied by notice of motion dated 18th December 2013 under Order 40 Rules 1(c), 2(1) and 4(1) of the Civil Procedure Rules and Section 13(1) and (7) of the Environment and Land Court Act for a temporary injunction restraining the Defendants from trespassing on, constructing on, cultivating, selling or transferring an unregistered 2-acre portion pending the hearing and determination of the suit. The Plaintiff deposed that the Defendants, from 2012, began claiming the portion, that village elders resolved the dispute in favour of the 3rd Defendant, and that the Defendants then erected building poles and begun constructing structures. The 3rd Defendant countered that he was the lawful owner, that the land belongs to members of Were Group Ranch (of which the Plaintiff and his late father were not members), that he had given the land to the Plaintiff's late father, and that the elders' decision favoured him. The court found that although the 3rd Defendant annexed a title to Weru Group Ranch (9,546 Ha), there was no evidence the disputed land fell within it; but equally, with the elders' decision against him and no supporting documents, the Plaintiff could not show a prima facie case with chances of success. Noting neither party had taken possession and structures were still being erected, the court declined the injunction and instead ordered that the status quo be maintained, with neither party dealing with the disputed land pending further orders, and each party bearing their own costs.

Key legal issues

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01

Whether the Plaintiff established a prima facie case for a temporary injunction

Holding

The court doubted the existence of a prima facie case given the absence of supporting documents and the elders' finding favouring the 3rd Defendant.

Reasoning

The Plaintiff claimed ownership of a 5-acre unregistered parcel and sought to restrain trespass on 2 acres. The 3rd Defendant asserted lawful ownership, reliance on the elders' decision, and membership of Were Group Ranch. Although a title to Weru Group Ranch was annexed, there was no evidence the disputed land fell within it, but equally no document supported the Plaintiff, so the injunction threshold was not met.

p. 2
02

What interim preservation order, if any, should issue

Holding

Rather than grant or refuse all relief, the court ordered maintenance of the status quo, restraining both parties from dealing with the disputed land pending trial.

Reasoning

The court found that neither party had taken possession of the disputed 2 acres and that structures were only in the process of being put up. Balancing the parties' positions and the need to preserve the suit property, it ordered the prevailing status quo to be maintained until further orders.

p. 2

Legal principles established

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  • Where an applicant for an interlocutory injunction produces no documentary evidence of title and the local elders' decision favours the respondent, the applicant may fail to demonstrate a prima facie case; the court may instead preserve the status quo pending trial.

Court orders

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  1. 1.That the status quo prevailing be maintained pending the hearing and determination of the suit
  2. 2.That none of the parties shall in any manner whatsoever deal with the disputed piece of land until the court makes further orders
  3. 3.That each party shall bear his or her own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1(c), 2(1) and 4(1)
  • Environment and Land Court ActSection 13(1) and (7)
Jurisdiction invoked
Order 40 Rules 1(c), 2(1) and 4(1) of the Civil Procedure Rules and Section 13(1) and (7) of the Environment and Land Court Act

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, "Katana Kahindi Masha v Karisa Wanje Masha & 2 others [2014] KEELC 392 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/392/eng@2014-05-16

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