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ELCDismissed· [2015] KEELC 515 (KLR)

Dorothy Kamaan v Elvis Wachira Maranga [2015] KEELC 515 (KLR)

Environment and Land Court
12 March 2015
JOJ. L. ONGUTO
923 words in judgment
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The bottom line

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When both sides to a land dispute hold equally flawed documents, Kenyan courts will leave the person in possession undisturbed until trial.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 8th December 2014 in which the plaintiff sought an interlocutory injunction in a land dispute over Plot No. 88, in which both the plaintiff and the defendant claimed to have purchased the property from the same alleged vendor, Stephen Otieno (also referred to as Stephen Daniel Otieno Ogada). The plaintiff relied on a sale agreement of November 2014, a power of attorney and rates receipts, while the defendant relied on a sale from 2008, a sale agreement, supporting documents and an affidavit sworn by the alleged vendor. Onguto J dismissed the application on 11th March 2015 and gave these reasons on 12th March 2015. The court applied the Giella v Cassman Brown conditions. It found no prima facie case: both parties had annexed identical allotment letters from the Nairobi City Council dated 17th July 2003, with no evidence of surrender of the original allotment letter, contrary to conveyancing practice, indicating that both parties were equally to blame. The court invoked the maxim pari delecto, potior est conditio possidentis, holding that the party in possession - the defendant - retains possession pending trial. The court further held that the plaintiff could be adequately compensated in damages if successful at trial, and found it unnecessary to consider the balance of convenience. No order as to costs was made. The court advised the parties to join the alleged vendors and the County Government of Nairobi for a full determination of the suit.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

The plaintiff failed to establish a prima facie case under the first Giella condition

Reasoning

The plaintiff relied on a sale agreement, power of attorney and rates receipts, but both she and the defendant held identical allotment letters dated 17th July 2003 from the Nairobi City Council. There was no evidence of surrender of the original allotment letter, contrary to conveyancing practice, so neither party's documents could safely ground title. The court could not prefer the plaintiff's case at the interlocutory stage.

p. 1
02

Possession where both parties equally at fault

Holding

The defendant, being in possession, retains possession pending the hearing of the suit

Reasoning

Applying the maxim pari delecto, potior est conditio possidentis, where both parties are equally to blame as to the root of title, the party in possession of unregistered land retains possession. Both parties' documentation was defective, so the status quo in favour of the defendant in possession should not be disturbed.

p. 2
03

Adequacy of damages

Holding

Damages would adequately compensate the plaintiff if she succeeds at trial

Reasoning

Though land is unique, the court held that the suit property could easily be valued in the circumstances of the case and the defendant could effect payment. This disposed of the second Giella condition against the plaintiff.

p. 2

Legal principles established

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  • Where both parties are equally to blame in their documentation of title to unregistered land, the party in possession retains possession pending trial (pari delicto, potior est conditio possidentis)
  • Conduct of a party is critical in equitable relief such as injunctions

Court orders

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  1. 1.Dismissal of the application dated 8th December 2014 seeking an interlocutory injunction
  2. 2.No order as to costs

Authorities

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Cases cited (1)

  • Giella –v- Cassman Brown & Co. Ltd
    [1973] EA 356
Jurisdiction invoked
Original jurisdiction (interlocutory application dated 8th December 2014); no specific constitutional or statutory provision invoked

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, "Dorothy Kamaan v Elvis Wachira Maranga [2015] KEELC 515 (KLR)", Case Analysis (2015). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/515/eng@2015-03-12

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