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ELCDismissed· [2017] KEELC 1010 (KLR)

Samson Kombo & 8 others v Julius Daraka Mbuzi & another [2017] KEELC 1010 (KLR)

Environment and Land Court
15 November 2017
JOJ. O. Olola
1,629 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan school with a title deed lost its bid for an interim injunction because long-standing occupation by a villager since 1979 outweighed the paper title at this stage.

What this practically means

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Executive summary

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By a Notice of Motion dated 24th March 2017, the Plaintiffs, the Board of Management of Kambi Ya Waya Primary School, sought interim orders restraining the 1st Defendant from burying the remains of one Kang'ombe Gunga in the suit land, Malindi/Marereni-Msumarini Scheme/462, and an injunction restraining the Defendants from interfering with the property. The Plaintiffs asserted they were the registered owners of the 5.79 Ha parcel under a title issued on 1st September 2006, and that the Defendants had wrongfully entered and remained in possession. The 1st Defendant opposed the application, contending the suit was an abuse of process, that he had occupied and used the land since 1979 pursuant to a sale agreement with Karisa Nzovu Tuva, that he built his homestead there, that the 2nd Defendant was a mere licensee, and that the dispute was really a boundary dispute affecting many community members settled on the land following an adjudication process conducted without proper demarcation. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the court found that the Plaintiffs' claim was undermined by the 1st Defendant's uncontroverted long occupation, the school's registration as a legal entity only in 2011 despite a 2006 title, and the Plaintiffs' own minutes showing unfenced land occupied by other community members. It held it would be unfair to grant the orders at an interlocutory stage and that no evidence showed the land was in danger of alienation. The application was dismissed with no order as to costs.

Key legal issues

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01

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

Holding

No. Although the Plaintiffs hold the registered title, the 1st Defendant's uncontroverted evidence of occupation since at least 1979 under a sale agreement, and the community's widespread settlement arising from an adjudication process without proper demarcation, meant the Plaintiffs' asserted right was not apparently infringed in a manner justifying the relief.

Reasoning

The court accepted the 1st Defendant's evidence of occupation from 1979, which the Plaintiffs did not controvert. The title was issued in 2006 before the school was registered as a legal entity in 2011, and the Plaintiffs' own minutes showed unfenced land occupied by other community members. The court found it would be unfair to grant the order before fully hearing how the school came to own the land.

p. 3
02

Whether the Plaintiffs would suffer irreparable injury not compensable by damages

Holding

No. No evidence was availed that the portion occupied by the 1st Defendant was in danger of being wasted, damaged or wrongfully alienated to third parties.

Reasoning

The court applied the second Giella principle and found nothing to suggest the land would be put out of the Plaintiffs' reach at the conclusion of the main suit, so damages would suffice and no injunction should issue.

p. 3

Legal principles established

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  • The three Giella v Cassman Brown principles govern the grant of interlocutory injunctions: prima facie case, irreparable injury not compensable by damages, and balance of convenience
  • A prima facie case is a genuine and arguable case in which a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party

Court orders

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  1. 1.The Notice of Motion dated 24th March 2017 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Education ActRegistration of the school

Cases cited (2)

  • Giella – vs- Cassman Brown Company Ltd
    (1973) EA 358
  • Mrao Ltd – vs- First American Bank of Kenya Ltd & 2 Others
    Civil Appeal No. 39 of 2002, (2003) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (interlocutory application in a land suit); no specific constitutional/statutory provision cited in the excerpt

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, "Samson Kombo & 8 others v Julius Daraka Mbuzi & another [2017] KEELC 1010 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1010/eng@2017-11-15

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