Kadzo Angore Kazungu & another v Abdalla Salim Omar [2015] KEELC 259 (KLR)
The bottom line
#A Malindi court temporarily stopped an eviction but also froze the occupiers' development, showing both sides of a land dispute can be restrained pending trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the question of res judicata arising from ELC No. 2 of 2011 can be determined at the interlocutory stage
No evidence was placed before the court showing that the Plaintiffs were parties to or aware of ELC No. 2 of 2011, nor of the relationship between the 1st Defendant in that suit and the Applicant; the res judicata question must be determined at the hearing.
The court had conclusively dealt with adverse possession in ELC No. 2 of 2011, ordering eviction after rejecting the adverse possession defence. However, the Applicants claimed they were not parties to that suit. No evidence showed that Charo Kazungu Chome (the 1st Defendant in that suit) was related to the Applicant, so the court could not make a finding on the relationship at that stage.
Whether an interlocutory injunction should issue to preserve the status quo
The injunction was granted strictly to maintain the status quo, restraining the Respondent from evicting the Applicants and restraining the Applicants from erecting new structures.
Given the absence of evidence that the Plaintiffs were aware of ELC No. 2 of 2011, and because the purpose of an injunction is to maintain the status quo pending hearing, the court allowed the application strictly for preservation of the prevailing position, but also restrained the Applicants from new construction to keep the balance.
Legal principles established
#- The purpose of an interlocutory injunction is to maintain the status quo pending the hearing of the suit
Court orders
#- 1.The Respondent is hereby restrained from evicting, disposing and interfering with the Applicant's peaceful occupation, use and possession of a portion of sub-division No.2348 (original number 1854/1) Section II MN measuring 589 ft by 260 ft by 150 ft by 144 ft pending the hearing and determination of the suit
- 2.The Applicants or their agents are hereby restrained from putting up any new structures on the suit property pending the hearing of the suit
- 3.Each party to bear his or her own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land matters (interlocutory application in a suit for adverse possession); specific statutory provision not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kadzo Angore Kazungu & another v Abdalla Salim Omar [2015] KEELC 259 (KLR)", Case Analysis (2015). Application dated 3rd November 2014 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/259/eng@2015-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.