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ELCDismissedKakamega HCCC (ELC) - Notice of Motion dated 19th August 2016· [2016] KEELC 1306 (KLR)

Mwivanda v Sifuna & 2 others (Environment & Land Case 155 of 2016) [2016] KEELC 1306 (KLR)

Environment and Land Court
14 December 2016
790 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kakamega refused to stop construction and occupation of disputed land because the landowner's own title documents contradicted each other.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 19th August 2016 by which the Plaintiff, Noah Jacob Mwivanda, sought interlocutory injunctions restraining the Defendants - Wilson Yaola Sifuna, Robert Kundu Makhanu and the County Government of Kakamega - from constructing on, accessing, remaining on or otherwise interfering with land parcel Kakamega/Kongoni/2278 pending the hearing of the suit. The application was opposed through a replying affidavit sworn by Wilson Sifuna Yaola on 3rd September 2016, and counsel Mr Musiega for the Plaintiff and Mr Ombito (with Mr Odeny holding his brief) for the Defendants made oral submissions on 27th September 2016. The court framed two issues: whether the Plaintiff had established a prima facie case for injunctive relief at the interlocutory stage, and who should bear the costs. Examining the affidavit evidence, the court noted that the Plaintiff's own documents showed registration on 20th March 2007 yet a title deed issued on 3rd April 2003, an anomaly he did not explain. The Defendants produced a search showing the Diocese of Kenya Registered Trustees (St. Josephs Kongoni Catholic Church) as registered proprietor since 2002 with a larger acreage, and that the Church was not a party to the suit. Evidence of public buildings and facilities on the land cast doubt on whether it was private or public land. Holding that two competing titles created doubt and that damages would adequately compensate a land claimant, the court found no prima facie case, dismissed the motion with costs and vacated the interim orders of 27th September 2016.

Key legal issues

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01

Whether the Plaintiff established a prima facie case for an interlocutory injunction

Holding

No; the existence of two title deeds over the same parcel, one in the Plaintiff's name and one in the name of the Diocese of Kenya Registered Trustees (St. Josephs Kongoni Catholic Church), with differing acreages and confusing registration/title dates, left genuine doubt as to which document is genuine

Reasoning

The Plaintiff's official search showed registration on 20th March 2007 yet the title deed was issued on 3rd April 2003, an impossibility the Plaintiff did not explain. The Defendants produced a search showing the Church registered as proprietor in 2002 with a larger acreage. The Church is not a party. Public buildings and facilities sit on the land, casting doubt on whether it is private or public land.

p. 2
02

Whether damages would be an adequate remedy and whether the balance of convenience favours refusal of the injunction

Holding

Yes; the claim being over land, loss is compensable in damages, and public offices in occupation should be allowed to remain pending determination

Reasoning

The court noted that from the evidence and submissions of the Defendants there are several public buildings and facilities on the suit land. It found it more convenient to allow those public offices to continue in occupation while the suit is heard and determined, since any loss to the Plaintiff can be measured and compensated.

p. 2

Legal principles established

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  • An applicant for an interlocutory injunction must establish a prima facie case with a probability of success; where two competing titles over the same parcel create doubt, the threshold is not met
  • In land claims, damages may be an adequate remedy because the loss of land is capable of being established and compensated

Court orders

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  1. 1.The notice of motion dated 19th August 2016 is dismissed with costs
  2. 2.The interim orders of 27th September 2016 are vacated
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (interlocutory injunction application)

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, "Mwivanda v Sifuna & 2 others (Environment & Land Case 155 of 2016) [2016] KEELC 1306 (KLR)", Case Analysis (2016). Kakamega HCCC (ELC) - Notice of Motion dated 19th August 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1306/eng@2016-12-14

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