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ELCAllowedLand Case No. 149 of 2014· [2015] KEELC 683 (KLR)

Clement Chemonges v John Masai & another [2015] KEELC 683 (KLR)

Environment and Land Court
21 January 2015
806 words in judgment
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The bottom line

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A Kenyan court ruled that someone who forcefully takes over your land cannot use their own illegal occupation to block an injunction protecting you.

What this practically means

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Executive summary

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In an interlocutory application before the Environment and Land Court at Kitale, the plaintiff sought a temporary injunction restraining the defendants from interfering with two acres forming part of Plot No. 42 Cheptenden. The plaintiff contended he bought the suit land on 3/2/2003 from the late Ndiwa Naibei Namaswa, took possession, fenced it and erected a temporary structure, and that in January 2014 the defendants forcefully ploughed and planted on the land without any colour of right. The defendants opposed through grounds of opposition, arguing the application was misconceived and that the relief sought was in substance a mandatory injunction that would alter the prevailing status quo given their presence on the land. The court applied the settled Giella v Cassman Brown principles. It found the plaintiff had exhibited a sale agreement and been in continuous possession since 2003; the defendants, nephews of the deceased vendor claiming the deceased never sold the land, filed no replying affidavit, and their belated claim after the vendor's death did not justify invading the land. The court held the defendants' entry was wrongful trespass and rejected the argument that their occupation should be preserved, observing that accepting such reasoning would allow forceful entrants to defeat injunctions. It distinguished the authorities the defendants relied on, noting those cases involved applicants seeking to restrain parties already in possession. Finding a prima facie case with probability of success and that the balance of convenience favoured the plaintiff, the court allowed the application in terms of prayers (2) and (3) of the motion dated 9/10/2014. No costs order was recorded.

Key legal issues

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01

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

Holding

The applicant, who bought the suit land in 2003 and had been in possession, demonstrated a prima facie case; the respondents, being trespassers who entered after the vendor's death, had no basis to invade the land

Reasoning

The court found the applicant had purchased the land in 2003 and taken possession, erecting a temporary structure and fencing it. The respondents, nephews of the deceased vendor claiming the deceased never sold the land, filed no replying affidavit. The court held their entry into the land after the vendor's death was wrongful trespass and no ground to defeat the applicant's possessory rights.

p. 1
02

Whether the respondents' presence on the land defeats the injunction on balance of convenience

Holding

The balance of convenience tilted in favour of the applicant; respondents' forceful entry could not be legitimated by leaving them in possession

Reasoning

The court rejected the respondents' argument that their presence on the land meant an injunction would amount to a mandatory injunction altering the status quo. It distinguished the authorities they cited, noting that in those cases the applicants sought restraining injunctions against parties already in possession, whereas here the applicant was in lawful possession before the forceful entry.

p. 2

Legal principles established

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  • A party who forcefully enters another's land cannot rely on that occupation to defeat an injunction preserving the lawful possessor's possession

Court orders

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  1. 1.Temporary injunction granted in terms of prayer (2) and (3) of the notice of motion dated 9/10/2014, restraining the respondents from interfering with the applicant's possession of two acres forming part of Plot No. 42 Cheptenden

Authorities

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Cases cited (1)

  • Giella vs. Cassman Brown & Co. Ltd.
    1973 EA 348
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (interlocutory application in a land case)

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, "Clement Chemonges v John Masai & another [2015] KEELC 683 (KLR)", Case Analysis (2015). Land Case No. 149 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/683/eng@2015-01-21

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