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ELCAllowedApplication dated 4/4/2017 (suit number not stated in judgment)· [2017] KEELC 1007 (KLR)

Paul Juma Chebus v Moses Kapkitui & another [2017] KEELC 1007 (KLR)

Environment and Land Court
9 October 2017
MNMwangi Njoroge
487 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer who showed a 2011 sale agreement and years of cultivating the plot won a court order stopping anyone from interfering with the land.

What this practically means

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Executive summary

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By an application dated 4/4/2017, the plaintiff (applicant) sought a temporary injunction restraining the defendants and their agents from claiming, ploughing, occupying, planting or using one acre out of Plot No. 45 Chepkuy Co-operative Society pending the hearing and determination of the suit. The applicant claimed to be a bona fide purchaser of one acre in 2011 and to have been in use and occupation since then, alleging that on 20/3/2017 the 2nd defendant stormed the suitland, claimed ownership and ploughed one acre. The 2nd defendant is a son to the 1st defendant. The application was opposed through the replying affidavit of Moses Kiptumuno Kapketui, sworn with the authority of the 2nd respondent, who denied selling any land to the applicant, alleged the exhibited sale agreement was a forgery, stated the land formed part of a school farm needed for expansion and in the school's continuous use, and asserted it was the applicant who attempted to invade the land in February 2017. The court held that at the interlocutory stage it need only be satisfied that the applicant has a prima facie case with probability of success and would suffer irreparable damage absent the orders. Noting that the exhibited agreement suggested a 2011 sale transaction with the 1st respondent and that other evidence showed the applicant had been in possession and cultivating, the court found a prima facie case established. On 9 October 2017 at Kitale, Mwangi Njoroge J granted a temporary injunction restraining the respondents and their agents from interfering with or dealing with the suitland until the hearing and determination of the main suit. No costs order was recorded.

Key legal issues

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01

Whether a temporary injunction should issue over one acre of Plot No. 45 Chepkuy Co-operative Society

Holding

Yes - the applicant established a prima facie case with probability of success and a temporary injunction was granted

Reasoning

The exhibited sale agreement suggested a 2011 sale transaction between the applicant and the 1st respondent, and other evidence indicated the applicant had been in possession and cultivating the suitland. At interlocutory stage the court applies the prima facie case and irreparable damage test; on that basis interference with the land was restrained pending the hearing of the main suit.

p. 1

Legal principles established

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  • At the interlocutory stage the court need only be satisfied that the applicant has a prima facie case with probability of success and would suffer irreparable damage absent the orders

Court orders

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  1. 1.Temporary injunction restraining the respondents and their agents from in any way interfering or dealing with the suitland until the hearing and determination of the main suit
Jurisdiction invoked
Inherent interlocutory jurisdiction to grant temporary injunction (Giella test applied)

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, "Paul Juma Chebus v Moses Kapkitui & another [2017] KEELC 1007 (KLR)", Case Analysis (2017). Application dated 4/4/2017 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1007/eng@2017-10-09

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