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ELCDismissedKisumu CMCC No. 1 of 2011 (referenced); Petition with Amended Notice of Motion dated 17th February 2014· [2016] KEELC 1204 (KLR)

Dave Odhiambo Oricho & Another v Attorney General & 3 others Interested Party Grace Awuor [2016] KEELC 1204 (KLR)

Environment and Land Court
27 January 2016
SKS. M. Kibunja
1,128 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed the applicants' injunction application, ruling that you cannot use an injunction to block a valid, unappealed court order.

What this practically means

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Executive summary

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Dave Odhiambo Oricho and Benedate Kasyoka Mbala filed an amended Notice of Motion dated 17th February 2014 in their petition against the Hon. Attorney General, the County Registrar of Lands Kisumu and the Director of Surveys, with Grace Awour as interested party. After interim orders of 19th February 2014 were spent, the motion sought a temporary injunction pending the petition, a mandatory injunction at the interlocutory stage, and costs. The court framed three issues: prima facie case, special circumstances for a mandatory injunction, and costs. On the evidence, the registers confirmed that Kisumu/Wathorego/139 was subdivided and the resulting parcels transferred, but a letter of 7th November 2013 from the Land Registrar recorded that all subdivisions were cancelled and parcels reverted to the original title pursuant to the decree in Kisumu CMCC No. 1 of 2011, a decision never quashed or appealed. The court held the 1st Respondent acted in lawful compliance with that order, that the Applicants failed to establish any of the three Giella v Cassman Brown grounds for a temporary injunction, and that no special circumstances existed to justify a mandatory injunction at the interlocutory stage, applying ICDC v Kenya Bus Services and Kenya Breweries v Okeyo. The motion was dismissed with costs and the interim orders of 19th February 2014 were vacated.

Key legal issues

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01

Prima facie case and temporary injunction

Holding

Applicants failed to establish a prima facie case with a probability of success; the title history showed the Respondents acted in compliance with an unquashed, unappealed order of the chief magistrate's court

Reasoning

The land registers confirmed parcels issued from Kisumu/Wathorego/139 were cancelled and reverted to the original title pursuant to the order in Kisumu CMCC No. 1 of 2011, which was neither quashed nor appealed. Granting an injunction would have interfered with implementation of that lower court order without any formal stay being sought, so none of the Giella grounds was satisfied.

p. 3
02

Mandatory injunction at interlocutory stage

Holding

No special circumstances exist to justify a mandatory injunction at the interlocutory stage

Reasoning

Relying on ICDC v Kenya Bus Services, the court reiterated that a mandatory injunction at the interlocutory stage requires special circumstances and clear cases. The 1st Respondent's reversion of the subdivisions was lawful compliance with a subsisting decree, so no clear case or special circumstance was shown.

p. 2

Legal principles established

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  • A mandatory injunction will not be granted on an interlocutory application in the absence of special circumstances, and only in clear cases
  • Orders issued by a court of law are meant to be obeyed; an aggrieved party must seek review or appeal, and an injunction cannot be used to interfere with a subsisting lower court order without a formal stay

Court orders

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  1. 1.The Applicants' amended Notice of Motion dated 17th February 2014 is dismissed with costs
  2. 2.The interim orders issued on 19th February 2014 are vacated

Authorities

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Cases cited (3)

  • Industrial and Commercial Developments Corporation -V- Kenya Bus Services & 2 others
    [2007] eKLR
  • Kenya Breweries Limited -V- Okeyo
    [2002] IEA 109
  • Giella – V- Cassman Brown Co Ltd
    (1973) E.A 358
Jurisdiction invoked
Original petition jurisdiction of the Environment and Land Court; applicants sought interlocutory injunctions pending hearing of the petition

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, "Dave Odhiambo Oricho & Another v Attorney General & 3 others Interested Party Grace Awuor [2016] KEELC 1204 (KLR)", Case Analysis (2016). Kisumu CMCC No. 1 of 2011 (referenced); Petition with Amended Notice of Motion dated 17th February 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1204/eng@2016-01-27

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