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ELCPartially AllowedNot stated in the judgment· [2015] KEELC 471 (KLR)

David Maritim Yego v Tecla Chepkosgei Sitienei [2015] KEELC 471 (KLR)

Environment and Land Court (High Court), Kitale
18 May 2015
EOE. Obaga
1,222 words in judgment
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The bottom line

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A Kenyan court ruled that a registered landowner's father-in-law could not use an injunction to evict a widow already living on and farming the family land.

What this practically means

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Executive summary

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This ruling by E. Obaga J at Kitale dealt with two cross-applications for temporary injunctions in a land dispute over L.R. No. Waitaluk/Kapkoi Block 5/Lolkeringet/6, registered in the plaintiff's name. The plaintiff, father-in-law to the defendant, sought to restrain her from entering or dealing with the suit land, following a family elders' meeting that resolved she should relocate to the plaintiff's plot at Kaplamai because of alleged disharmony. The defendant, widow of the plaintiff's deceased son Josiah Kipchumba Maritim, who died on 10/5/2008 and to whom she was married in church in 1997, opposed the application, alleging the plaintiff made sexual advances to her and demanded she be inherited by a family member, both of which she rejected. She in turn sought an injunction restraining the plaintiff from interfering with the six acres allocated to her late husband, which she uses to educate her children. Applying the settled Giella principles of prima facie case, irreparable harm and balance of convenience, the court held that the plaintiff's application was in substance a mandatory injunction that would evict the defendant before trial, and that family discord was not justification for her removal; his application was dismissed with costs. The court found the defendant had demonstrated a case, noting the plaintiff never denied preventing her cultivation and that a counter-claim is not required for a defendant to seek an injunction. An injunction was granted restraining the plaintiff and his agents from interfering with her six acres, with costs to the defendant.

Key legal issues

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01

Whether the plaintiff established a prima facie case with probability of success

Holding

He did not; the defendant's occupation derives from her marriage to the deceased and refusal to relocate is not justification for removal

Reasoning

The court noted the land is registered in the plaintiff's name but the defendant has lived there since her 1997 marriage and her matrimonial home is on it. A temporary injunction preserves property, and barring her entry would effectively evict her before trial. The alleged family discord does not justify her removal, and no irreparable harm compensable in damages was shown.

p. 2
02

Whether an injunction should issue protecting the defendant's six acres

Holding

Yes; the plaintiff did not deny preventing her from utilizing the land and her children's school fees depend on it

Reasoning

The defendant showed she is the widow of the plaintiff's son, her matrimonial home is on the land, and she needs the six acres to educate her children. The plaintiff did not deny preventing her cultivation. The balance of convenience tilts in her favour as she is in occupation, and no counter-claim was required for her to seek protection.

p. 2

Legal principles established

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  • A defendant need not file a counter-claim as the basis for an application for injunction; being sued suffices
  • A temporary injunction cannot be used to remove a party already in occupation, as that would be a mandatory injunction without a hearing

Court orders

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  1. 1.The plaintiff's application dated 16/2/2015 is dismissed with costs to the defendant
  2. 2.An injunction granted restraining the plaintiff or any of his agents from interfering with the defendant's six acres out of L.R. No. Waitaluk/Kapkoi Block 5/Lolkeringet/6
  3. 3.The defendant shall have the costs of her application
Jurisdiction invoked
Not stated in the judgment

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, "David Maritim Yego v Tecla Chepkosgei Sitienei [2015] KEELC 471 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/471/eng@2015-05-18

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