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ELCOtherNot stated on the face of the judgment (Eldoret Environment and Land Court suit)· [2017] KEELC 2036 (KLR)

Evans Kemboi Koech v Mary Juster Chepleting & another [2017] KEELC 2036 (KLR)

Environment and Land Court
26 July 2017
3,911 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court let an auction buyer stay on disputed farmland but froze any building, selling or wasting of it until the case is fully heard.

What this practically means

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Executive summary

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Two competing applications arose in this Environment and Land Court suit at Eldoret over L.R. No. 3209/1, Arbabuch Area, Moiben, Uasin Gishu County (approximately 305 acres). The plaintiff, Evans Kemboi Koech, sought a temporary injunction restraining the defendant, Mary Juster Chepleting, from encroaching on or interfering with the suit property, which he said he purchased at a public auction on 9.9.2016 conducted by Legacy Auctioneering Services on behalf of Agricultural Finance Corporation (AFC), the chargee. He bid Kshs.100,000,000, paid a Kshs.25,000,000 deposit and the balance within 90 days, took possession, fenced the land and planted maize. The defendant opposed, alleging the ex-parte orders of 22.3.2017 were obtained by misrepresentation and non-disclosure, that the plaintiff never purchased the land, that AFC's records showed Spaceler Company Limited as highest bidder, and she sought discharge of the orders plus citation of the plaintiff for contempt and perjury. AFC, through Mrs. Rose A. Ochanda, detailed the defendant's loan default since 1996, successive statutory notices, prior failed suits by the defendant, and confirmed the plaintiff was the highest bidder who nominated Spaceler Company Limited as transferee. Applying Giella v Cassman Brown, Ombwayo J found a prima facie case with likelihood of success for the plaintiff, found irreparable harm not properly demonstrated, and held the balance of convenience favoured maintaining status quo: the plaintiff to remain in possession but without construction, wastage or alienation until the hearing of the suit. The order settled both applications, with costs in the cause.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

The plaintiff established a prima facie case with a likelihood of success as purchaser at the public auction, as certified by the interested party; allegations of fraud by the defendant were not established on a prima facie basis and would be considered at the hearing

Reasoning

The court found an advertisement for the auction of L.R. No. 3209/1 in the Standard Newspaper on 17.8.2016, a memorandum of sale showing the plaintiff bid Kshs.100,000,000 with a Kshs.25,000,000 deposit, an agreement for sale, and AFC's acknowledgment of payment and authorization to take possession. The defendant's fraud allegations were not prima facie established. The court applied the Giella v Cassman Brown test.

p. 6
02

Irreparable harm

Holding

The plaintiff did not properly demonstrate irreparable harm

Reasoning

On the second Giella limb, the court found the plaintiff had not properly brought out the likelihood of irreparable harm if the injunction were not granted. This failure fed into the decision to fall back on the balance of convenience and to issue a status quo order rather than a full injunction against the defendant.

p. 6
03

Balance of convenience and disposition of both applications

Holding

The balance of convenience tilts towards maintaining the status quo, with the plaintiff remaining in possession but restrained from construction, wastage or alienation until the hearing

Reasoning

The court found the plaintiff was in possession, noting the defendant's admission that she was in possession until 14.3.2017 while the court order issued on 23.3.2017. Maintaining the status quo preserved the position pending trial and, in the court's view, settled both the plaintiff's injunction application and the defendant's application to set aside the ex-parte orders and cite the plaintiff for contempt.

p. 6

Legal principles established

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  • In an interlocutory injunction application the court is guided by the Giella test: prima facie case with probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience

Court orders

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  1. 1.Status quo on the ground to be maintained, the plaintiff to remain in possession
  2. 2.No construction, or any kind of wastage, alienation in respect of the suit parcel of land until hearing of the suit
  3. 3.The order settles both applications (the plaintiff's application dated 22.3.2017 and the defendant's application dated 27.3.2017)
  4. 4.Costs in the cause

Authorities

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Cases cited (1)

  • Giella Vs Cassman Brown, & Co Ltd
    [1973] EA 358
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to grant interim injunctive relief pending hearing of the suit (not expressly cited)

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, "Evans Kemboi Koech v Mary Juster Chepleting & another [2017] KEELC 2036 (KLR)", Case Analysis (2017). Not stated on the face of the judgment (Eldoret Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2036/eng@2017-07-26

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