Peter Vidija Serete & 2 others v Charles Owiti Mudunyi & 2 others [2016] KEELC 618 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants established a prima facie case with probability of success
They did not: the description of the land was doubtful, the chain of title of the second Applicant derived from a third party, and possession and interference were not demonstrated
All Applicants claimed to have bought from Appollos Kennedy Mwangi, yet the second Applicant's documents showed purchase from Lazaro Asiago Omogo, and it was unclear whether Omogo bought from Mwangi. The parcel description 'Gutungorio/Kapkoi/Part of/4' was doubted. No photographs or other evidence of destroyed fences or cultivation were produced, and the chief's compensation letters to KETRACO did not assist. The application was also described as amorphous.
Whether damages would be an inadequate remedy
Any encroachment or effect of survey work could be remedied and compensated in damages
The court held that if any encroachment existed, it was remediable, and that parties in possession are bound to be slightly affected once survey is carried out depending on their positions on the ground. Loss flowing from such survey effects is therefore compensable, failing the second Giella principle.
The Respondents' defence that they were implementing a court order and Land Control Board consent
The court noted the defence but decided the motion on the Applicants' failure to establish a prima facie case
The Respondents contended they had successfully litigated against Appollos Kennedy Mwangi, obtained Land Control Board consent to subdivide, and were merely implementing a court order, with enough land for both sides and the portions shown to the Applicants subject to confirmation by the surveyor. The court did not adjudicate this defence fully, instead resolving the motion on the inadequacy of the Applicants' material.
Legal principles established
#- An applicant for a temporary injunction must establish a prima facie case with probability of success, that damages would not adequately compensate, and where in doubt the court decides on a balance of convenience
- A prima facie case is a genuine and arguable case showing an apparently infringed right calling for an explanation or rebuttal from the opposite party
- Loss capable of compensation in damages does not justify a temporary injunction; effects of survey work on parties in possession are compensable
Court orders
#- 1.The Applicants' Notice of Motion dated 27/4/2016 seeking a temporary injunction is dismissed
- 2.Costs of the application to the Respondents
- Jurisdiction invoked
- Inherent jurisdiction of the High Court to grant temporary injunctions pending hearing and determination of the suit (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Vidija Serete & 2 others v Charles Owiti Mudunyi & 2 others [2016] KEELC 618 (KLR)", Case Analysis (2016). Notice of Motion dated 27/4/2016 (suit particulars not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/618/eng@2016-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.