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ELCDismissedNotice of Motion dated 7/6/2016 (suit number not stated in judgment)· [2016] KEELC 641 (KLR)

Rael Kemunto v Wycliffe Adego & another [2016] KEELC 641 (KLR)

Environment and Land Court
28 July 2016
EOE. OBAGA
1,250 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop land use or order exhumation because the buyer could not prove she actually owned the land.

What this practically means

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Executive summary

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The applicant, a self-described member of Ndelema Self Help Group, moved the court by Notice of Motion dated 7/6/2016 seeking an injunction restraining the defendant from entering, cultivating, leasing, selling or harvesting maize on Plot No. 29 comprised in LR. No. 8994/11, an order for exhumation of the body of the defendant's mother buried on the land on 3/6/2016, and an injunction against further burials. She claimed to have bought Plot No. 29 from the Agricultural Finance Corporation (AFC), the interested party and title holder of the charged land. The respondent opposed, asserting the Self Help Group's rights and conservatory orders in Petition No. 3 of 2012, while AFC maintained the land was lawfully charged to it in 1990, never subdivided or sold, and that both parties were squatters frustrating realization of its security. Applying the Giella -vs- Cassman Brown principles, the court found the applicant's receipts illegible and disowned by AFC, the purchase negotiations incomplete, and the land still charged. Relying on AFC's earlier successful suit against the respondent (Kitale CMCC No. 50 of 2016), the court held that neither the applicant nor the respondent had any recognizable interest in LR. No. 8994/11, that no prima facie case was established, and that no loss incapable of compensation in damages was shown. The balance of convenience did not arise. The application was dismissed with costs to the respondents.

Key legal issues

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01

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

Holding

She did not; the land remains charged to AFC, has never been subdivided or sold to her, and both parties are squatters with no recognizable interest

Reasoning

The applicant relied on illegible receipts allegedly issued by AFC, but AFC disowned them. Correspondence showed Ndelema Self Help Group were still negotiating to purchase the charged property, negotiations incomplete. A lower court suit (Kitale CMCC No. 50 of 2016) confirmed AFC's continuing interest. The court held neither party had a recognizable interest in LR No. 8994/11.

p. 2
02

Whether the applicant would suffer loss not compensable in damages

Holding

No; she has no proprietary interest in the land, so the question of uncompensable loss does not arise

Reasoning

The property has never been subdivided or put up for sale by AFC; negotiations with the Self Help Group remain incomplete after the chargor defaulted. Having no proprietary interest, the applicant cannot claim damages between her and the respondent are inadequate.

p. 2
03

Balance of convenience

Holding

Not considered, as the court was not in any doubt about the outcome

Reasoning

Having found no prima facie case and no irreparable loss, the court did not need to reach the third Giella limb. It noted numerous cases had been filed over the property pitting one group of squatters against another.

p. 2

Legal principles established

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  • The principles for grant of a temporary injunction are those in Giella -vs- Cassman Brown: prima facie case with probability of success, irreparable loss not compensable in damages, and balance of convenience if in doubt
  • A confessed squatter on land still validly charged to a chargee has no recognizable or proprietary interest capable of supporting an injunction

Court orders

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  1. 1.The applicant's Notice of Motion dated 7/6/2016 is dismissed with costs to the respondents

Authorities

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Cases cited (1)

  • Giella -vs- Cassman Brown & Co. Ltd
    1973 [EA] 358
Jurisdiction invoked
Inherent powers of the court on an interlocutory application under order of temporary injunction (no specific constitutional/statutory provision stated)

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, "Rael Kemunto v Wycliffe Adego & another [2016] KEELC 641 (KLR)", Case Analysis (2016). Notice of Motion dated 7/6/2016 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/641/eng@2016-07-28

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