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ELCPartially AllowedNot stated in the judgment· [2014] KEELC 510 (KLR)

Kogo Flats Ltd v Sammy Cherunya [2014] KEELC 510 (KLR)

Environment and Land Court
23 April 2014
MSMUNYAO SILA
683 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Eldoret land court stopped a defendant from using disputed land, but refused to force demolition of structures until the full case is heard.

What this practically means

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Executive summary

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The plaintiff, a registered owner of the suit land Eldoret Municipality/Block 15/1857, moved the Environment and Land Court at Eldoret by way of an application for injunction pending the hearing and determination of the main suit, in which it sought vacant possession, mesne profits, rent, general damages and costs. The application sought to restrain the defendant from destroying the property, erecting structures, cutting trees or wasting the land, and additionally sought mandatory orders compelling removal of structures and restoration of the premises, a prohibitory order against further cultivation or fixtures, and an order for the defendant to vacate the suit property. The application, supported by the affidavit of Sammy Boit arap Kogo, a director of the plaintiff company, was uncontested as the defendant, though served, neither entered appearance nor filed a defence. The court declined the mandatory relief, holding that there was no evidence of when the structures were erected, that they were erected by the defendant, or what condition the land was in previously, noting the plaintiff only became registered owner on 16 July 2013 and the structures may have been put up by a previous owner. Treating the application purely as one for an interlocutory injunction and applying the principles in Giella v Cassman Brown (1973) EA 358, the court found a prima facie case in the plaintiff's registered title and the absence of any defence. The court allowed the application in part, restraining the defendant from entering, being on, ploughing or utilizing the suit land pending the hearing and determination of the suit, with costs of the application in the cause.

Key legal issues

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01

Whether mandatory injunction could issue at the interlocutory stage

Holding

Refused; insufficient material existed to show the structures were erected by the defendant or what the land's prior condition was

Reasoning

The plaintiff's title dates from 16 July 2013 and the suit was instituted on 13 February 2014, leaving open the possibility that the structures were erected by a previous owner. Without evidence of when the structures were put up and by whom, the court could not assume the defendant illegally erected them. Mandatory orders could only issue after hearing the main suit.

p. 2
02

Whether an interlocutory injunction should issue restraining the defendant from the suit land

Holding

Granted; the plaintiff is the registered owner and the defendant filed no defence to justify occupation, establishing a prima facie case

Reasoning

Applying the Giella v Cassman Brown principles, the plaintiff produced a certificate of title showing registration as owner, and the defendant, though served, neither entered appearance nor filed a defence explaining his entitlement to the land. This demonstrated a prima facie case with a probability of success, justifying restraint pending trial.

p. 2

Legal principles established

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  • An applicant for an injunction must demonstrate a prima facie case with a probability of success, and if the court is in doubt, the matter is decided on a balance of convenience
  • Mandatory injunctions at the interlocutory stage require sufficient material showing that the acts complained of were done by the defendant; the court will not assume this on the papers

Court orders

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  1. 1.The defendant is hereby barred from entering, or being on the suit land, or ploughing or utilizing the suit land in any way either by himself or his servants/agents, pending the hearing and determination of this suit
  2. 2.The costs of the application shall be costs in the cause

Authorities

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Cases cited (1)

  • Giella v Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land

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, "Kogo Flats Ltd v Sammy Cherunya [2014] KEELC 510 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/510/eng@2014-04-23

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