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ELCDismissedNot stated in the judgment (Notice of Motion dated 2nd May 2017)· [2017] KEELC 268 (KLR)

Philip Kibet Kemei & another v Josiah Kipkoskei Kirui [2017] KEELC 268 (KLR)

Environment and Land Court
24 October 2017
718 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 refused to protect land buyers whose purchase failed because they never obtained Land Control Board consent within six months of the sale.

What this practically means

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Executive summary

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This Environment and Land Court ruling by J.M Onyango, delivered on 24th October 2017, determined a Notice of Motion dated 2nd May 2017 in which the plaintiffs, Philip Kibet Kemei and Joel Kiptoo Tuei, sought a temporary injunction restraining the defendant from entering, cultivating, building on or otherwise interfering with two acres of KERICHO/SORGET/KALYET BLOCK 1/160 pending the hearing of the suit. The applicants deponed that they purchased the land from the defendant over ten years earlier and had occupied it, but that since March 2017 the defendant had dumped building materials and begun construction, depriving them of their livelihood. The defendant opposed the application, admitting the sale but contending that it was null and void because Land Control Board consent was never obtained as required by the Land Control Act Cap 302; he offered to refund the purchase price by bankers' cheques, which the applicants refused. The court framed the sole issue as whether the applicants met the Giella v Cassman Brown criteria for an interlocutory injunction. It found that the absence of Land Control Board consent within six months rendered the sale null and void, relying on the Court of Appeal decision in Kiplagat Kotut v Rose Chebor Kipngok. The applicants therefore failed to establish a prima facie case with a probability of success, and the application was dismissed with costs.

Key legal issues

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01

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

Holding

They did not; the sale to them was null and void for want of Land Control Board consent, so they have no recognizable interest

Reasoning

The court accepted that the defendant sold portions of the land to the applicants, but noted it was common ground that Land Control Board consent was never obtained within the six-month period required by the Land Control Act, rendering the sale null and void. Following the Court of Appeal in Kiplagat Kotut v Rose Chebor Kipngok, the court held its hands were tied by the mandatory statutory provisions. Without a valid interest in the land, the applicants could not demonstrate a prima facie case with a probability of success, and the application for an interlocutory injunction failed at the first Giella hurdle.

p. 2

Legal principles established

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  • Conditions for an interlocutory injunction: prima facie case with probability of success, irreparable injury not adequately compensable in damages, and balance of convenience where the court is in doubt
  • A sale of agricultural land without Land Control Board consent obtained within six months is null and void

Court orders

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  1. 1.The Notice of Motion dated 2nd May 2017 is dismissed
  2. 2.Costs of the application to the defendant

Authorities

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Legislation

  • Land Control ActCap 302 (Laws of Kenya)

Cases cited (2)

  • Giella V Cassman Brown
    1973 EA 358
  • Kiplagat Kotut V Rose Chebor Kipngok
    Civil Appeal No 31 of 2015
Jurisdiction invoked
Inherent jurisdiction to grant interlocutory injunctive relief pending determination of the suit (Giella v Cassman Brown criteria)

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, "Philip Kibet Kemei & another v Josiah Kipkoskei Kirui [2017] KEELC 268 (KLR)", Case Analysis (2017). Not stated in the judgment (Notice of Motion dated 2nd May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/268/eng@2017-10-24

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