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ELCDismissedNot stated in judgment (application dated 11/7/2017 in a pending main suit)· [2017] KEELC 936 (KLR)

Geoffrey Wanyonyi v Edward Lagat [2017] KEELC 936 (KLR)

Environment and Land Court
19 October 2017
MNMwangi Njoroge
1,444 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A registered owner's injunction bid failed because he couldn't prove the disputed Kitale plot was actually his — evidence and possession matter more than a title document alone.

What this practically means

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Executive summary

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The applicant, who purchased land Parcel No. 2116/1200 – Kitale Municipality at a public auction conducted by the National Bank of Kenya on 16/4/2010 and was registered as owner, sought a temporary injunction restraining the defendant from entering, trespassing, fencing or otherwise interfering with the land pending the hearing of the main suit. He alleged that on 9/5/2017 his agent was arrested by the respondent and charged with trespass, and that the respondent had since fenced the land. The respondent opposed the application, asserting that he occupies a different plot, Plot No. Kitale Municipality Block 2116/Block 7/Plot No. USN 24, allocated to his late father by the County Council of Kitale on 16/6/1998, that he has occupied it for over 15 years, and that the applicant had never been in possession. Applying the Giella v Cassman Brown principles, the court found the applicant had not demonstrated a prima facie case with probability of success: he filed no supplementary affidavit to counter the respondent's averments, failed to prove that the two plot descriptions refer to the same parcel, and had never been in possession. Since the fencing had already been accomplished, the relief sought was in substance a mandatory injunction rather than a temporary one. Applying the balance of convenience, the court held it lay in preserving the status quo. The interim orders previously in force were discharged, the application dated 11/7/2017 was dismissed with costs in the cause, and the parties were directed to set the main suit down for hearing.

Key legal issues

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01

Whether the applicant established a prima facie case with probability of success

Holding

No - the applicant never claimed possession, produced no affidavit to counter the respondent's averments, and failed to demonstrate that the parcel described in his grant is the same parcel the respondent occupies

Reasoning

The respondent asserted long occupation under an allotment by the County Council of Kitale and that his father's plot bears a different number. The applicant filed no supplementary affidavit to rebut these claims and could not show that LR No. 2116/1200 and Plot No. USN 24 are one and the same. With the true identity of the plot in doubt, a prima facie case with probability of success was not demonstrated.

p. 2
02

Whether the balance of convenience favours granting the injunction

Holding

Yes, in favour of preserving the status quo - the interim orders were discharged and the application dismissed

Reasoning

Since the court was in doubt, it applied the balance of convenience. The respondent had been in occupation for over 15 years, fencing had been accomplished, and disturbing possession would not preserve the status quo. The court held the balance lay in not disturbing the status quo pending trial.

p. 3

Legal principles established

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  • Where the court is in doubt on an injunction application, it decides the matter on a balance of convenience
  • Where acts intended to be restrained have already been accomplished (e.g. fencing completed), temporary injunction is not the appropriate remedy and the applicant should seek a mandatory injunction
  • If there is no prima facie case on the point essential to the plaintiff's complaint, that is the end of any claim to interlocutory relief

Court orders

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  1. 1.The interim orders that had been in force in the suit are discharged
  2. 2.The application dated 11/7/2017 is dismissed
  3. 3.Costs shall be in the cause
  4. 4.The parties should comply with the Rules and set the main suit down for hearing at the earliest

Authorities

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Legislation

  • Not expressly cited in the judgment-

Cases cited (5)

  • Devani –vs- Bhadressa & Another
    Civil Appeal No. 21 of 1971 (1972 EA, 22)
  • Giella –vs- Cassman Brown
    1973 EA 358
  • Moses Kiptanui & another v Evans Kamau Mwaura
    [2015] eKLR
  • Naftali Ruthi Kinyua v Patrick Thuita Gachure & another
    [2015] eKLR
  • American Cyanamid vs Ethicon Limited
    [1975] AC 396
Jurisdiction invoked
Inherent jurisdiction to grant interlocutory relief in a land suit (application dated 11/7/2017 pending hearing and determination of the main 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, "Geoffrey Wanyonyi v Edward Lagat [2017] KEELC 936 (KLR)", Case Analysis (2017). Not stated in judgment (application dated 11/7/2017 in a pending main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/936/eng@2017-10-19

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