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ELCAllowedKericho ELC (Notice of Motion dated 30th June 2017)· [2017] KEELC 210 (KLR)

Julius Kipyegon Koech v Paul Kipngetich Koech [2017] KEELC 210 (KLR)

Environment and Land Court
7 November 2017
1,199 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 stopped a brother from encroaching on family land, confirming that a registered title certificate is strong proof of ownership.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Kericho by J.M. Onyango J, dated 7 November 2017, determines the Plaintiff/Applicant's Notice of Motion dated 30 June 2017 brought under Order 40 Rules 3(1) and (2) and Order 51 of the Civil Procedure Rules and sections 1, 1A, 3 and 3A of the Civil Procedure Act, seeking a temporary injunction to restrain the Defendant/Respondent, his brother, from encroaching on, grazing animals on, cutting trees on or otherwise interfering with land parcel KERICHO KOIYET/S.S/359 measuring 6.9 hectares pending determination of the main suit. The applicant, a beneficiary of the estate of Makerer Arap Birir, was registered as proprietor through transmission pursuant to Kericho HC Succession Cause no. 91 of 2008, the parcel having been carved from a sub-division of KERICHO/KOIYET S.S/168 between the two brothers. The respondent disputed the distribution of the estate and claimed non-involvement in the sub-division, but produced no evidence of any appeal against the succession judgment, and did not attend the hearing on 24 October 2017 despite having been present when the date was fixed; the application proceeded ex parte. Applying the Giella v Cassman Brown conditions as restated in David I. Githuku, and the lower-risk-of-injustice principle from Films Rover International via Amir Suleiman, the court held that the applicant's certificate of title established a prima facie case; that the trespassory acts could not be quantified in money, showing irreparable loss; and that the balance of convenience favoured the applicant. The court issued the temporary injunction as sought and ordered the defendant to bear the costs of the application.

Key legal issues

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01

Prima facie case with probability of success

Holding

Established - the applicant produced a certificate of title showing he is the registered proprietor of the suit land acquired by transmission through the succession cause.

Reasoning

The applicant attached a certificate of title showing he is registered proprietor of KERICHO/KOIYET S.S/359, acquired through transmission pursuant to the judgment in Kericho HC Succession Cause no. 91 of 2008. The respondent disputed the distribution but produced no evidence of any appeal against that judgment. In the absence of contrary evidence the title stands as prima facie evidence of ownership, satisfying the Mrao test.

p. 2
02

Irreparable loss

Holding

Established - the trespassory acts (cutting trees, grazing, cultivation) cannot be adequately quantified in monetary terms.

Reasoning

The respondent's alleged acts of cutting down trees, grazing animals, cultivating and denying the applicant peaceful occupation are not easily quantifiable in monetary terms, so damages would not be an adequate remedy. The applicant therefore demonstrated likelihood of irreparable loss if the injunction was withheld.

p. 2
03

Balance of convenience

Holding

Tilts in favour of the applicant; a larger risk of injustice would follow a finding for the respondent.

Reasoning

Applying the Films Rover lower-risk-of-injustice principle as adopted in Amir Suleiman, the court reasoned that there would be a much larger risk of injustice in finding for the respondent than in granting the injunction, so the balance of convenience favoured the applicant. All three Giella conditions being met, the temporary injunction issued.

p. 2

Legal principles established

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  • The conditions for granting a temporary injunction are: a prima facie case with probability of success; irreparable injury not adequately compensable by damages; and, if in doubt, a decision on the balance of convenience.
  • A prima facie case is one which, on the material presented, shows an apparently infringed right calling for an explanation or rebuttal from the opposite party.
  • Where the court is in doubt on an interlocutory application, it should take whichever course carries the lower risk of injustice.
  • A certificate of title is prima facie evidence that the registered owner is the absolute proprietor of the land.

Court orders

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  1. 1.That pending the hearing and determination of the suit a temporary injunction is issued restraining the defendant by himself, his servants, agents, employees, representatives, assigns and heirs from encroaching into, grazing animals, cutting down trees and/or doing any acts detrimental to the plaintiff's peaceful right of occupation, possession and use of land parcel number KERICHO KOIYET/S.S/359 measuring 6.9 Hectares
  2. 2.The defendant shall bear the costs of this application

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 3(1) and (2)
  • Civil Procedure RulesOrder 51
  • Civil Procedure Actsections 1, 1A, 3 and 3A
  • Land Registration Actnot specified

Cases cited (5)

  • Giella V Cassman Brown
    1973 EA 358
  • David I. Githuku V George Munyua Mbira & 2 Others
    (2013) eKLR
  • Amir Suleiman V Amboseli Resort Limited
    (2004) eKLR
  • Films Rover International
    1986 3 All ER 772
  • Mrao V First American Bank of Kenya Limited
    (2003) eKLR
Jurisdiction invoked
Order 40 Rules 3(1) and (2) and Order 51 of the Civil Procedure Rules; sections 1, 1A, 3 and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Julius Kipyegon Koech v Paul Kipngetich Koech [2017] KEELC 210 (KLR)", Case Analysis (2017). Kericho ELC (Notice of Motion dated 30th June 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/210/eng@2017-11-08

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