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ELCDismissedKisumu ELC Case (suit number not stated in judgment)· [2016] KEELC 713 (KLR)

Chrisantus Opondo Kasonga v Charles Obila Oturu & another [2016] KEELC 713 (KLR)

Environment and Land Court
13 July 2016
SKS.M. Kibunja
591 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a landowner's bid to stop neighbours using his land because his photos lacked a required certificate and a survey showed he was the encroacher.

What this practically means

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Executive summary

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The Plaintiff, Chrisantus Opondo Kasonga, moved the court by notice of motion dated 4th June 2014 seeking a temporary injunction restraining the 1st and 2nd Defendants, Charles Obila Oturo and Charles Osemo, from entering, remaining upon or cultivating land parcel Kisumu/Koru/1087 pending the hearing and determination of the suit. The application was supported by the Plaintiff's affidavit and opposed by replying affidavits sworn by both Defendants. The 2nd Defendant's counsel filed written submissions; the Plaintiff filed none. The court framed two issues: whether the Plaintiff had made a case for a temporary injunction at the interlocutory stage, and who should bear the costs. The court found that parcels Kisumu/Koru/1087, 1088 and 1089 are registered in the names of the Plaintiff, 1st Defendant and 2nd Defendant respectively, and are subdivisions of parcel Kisumu/Koru/236 which belonged to the 1st Defendant. A survey exercise found that the Plaintiff's parcel had encroached onto the 2nd Defendant's parcel by 0.4621 hectares. This finding, made after the filing of the suit, cast doubt on the Plaintiff's claim of encroachment onto his land, which was evidenced only by photographs whose provenance the 2nd Defendant disputed and which lacked the certificate required under Section 106B(4) of the Evidence Act. The court held that the Plaintiff had failed to establish a prima facie case, dismissed the notice of motion with costs to the Defendants, and vacated the interim order of 5th June 2014.

Key legal issues

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01

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

Holding

The application was dismissed because the Plaintiff failed to establish a prima facie case

Reasoning

The court considered the affidavit evidence, including a surveyor's report showing that the Plaintiff's parcel Kisumu/Koru/1087 encroached onto the 2nd Defendant's parcel Kisumu/Koru/1089 by 0.4621 hectares. This survey, conducted after filing of the suit, cast doubt on the Plaintiff's photographic evidence of encroachment, which was disputed and unsupported by a certificate under Section 106B(4) of the Evidence Act. Without a prima facie case, no temporary injunction could issue.

p. 2

Legal principles established

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  • Photographic evidence requires a certificate under Section 106B(4) of the Evidence Act to confirm where photographs were taken and processed

Court orders

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  1. 1.Dismissal of the Plaintiff's notice of motion dated 4th June 2014
  2. 2.Costs of the application to the Defendants
  3. 3.Vacation of the interim order of 5th June 2014

Authorities

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Legislation

  • Evidence ActSection 106B(4)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (interlocutory application in a land suit)

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, "Chrisantus Opondo Kasonga v Charles Obila Oturu & another [2016] KEELC 713 (KLR)", Case Analysis (2016). Kisumu ELC Case (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/713/eng@2016-07-13

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