Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedApplication dated 1st March 2017 in suit over plot No. 979/Rong'e/Nyika· [2017] KEELC 2162 (KLR)

Hannington Mwamburi Masese v Appolo Mwasent Kmwonge & another [2017] KEELC 2162 (KLR)

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

The bottom line

#

What this practically means

#

Executive summary

#
The plaintiff applied by notice of motion dated 1st March 2017 for a temporary injunction restraining the defendants from trespassing on, encroaching, occupying, cultivating, transferring or alienating plot No. 979/Rong'e/Nyika in Taita Taveta County (1.05 Ha), and for an order that the OCS Wundanyi Police Station effect eviction. The plaintiff claimed ownership since demarcation and alleged that the 1st defendant sold a half-acre portion to the 2nd defendant without consent, after which the 2nd defendant began constructing. The 1st defendant opposed, stating the lands were family plots 995, 996 and 950 established circa 1916-17 and adjudicated in 1986, admitting only the sale of a portion of plot 995 to the 2nd defendant and denouncing the plaintiff as a stranger with a fictitious, fraudulent claim. Both sides exhibited title deeds issued in August 2006. Applying the classic injunction principles, the court found a prima facie case on the competing titles but held that irreparable loss was neither pleaded nor explained, and that the balance of convenience did not favour the applicant, since restraining the 2nd defendant would alter the status quo. The court declined to restrain occupation or grant eviction but issued a limited temporary injunction restraining the defendants from transferring, alienating or disposing of the disputed portion pending trial, capable of registration on both title deeds. Each party was to bear their respective costs of the application. Judgment delivered at Mombasa on 31st July 2017 by A. Omollo J.

Key legal issues

#
01

Prima facie case

Holding

Established since both parties exhibited title deeds to the disputed portion

Reasoning

Both parties annexed title deeds issued in August 2006 in respect of their respective portions. The 1st defendant admitted selling a portion of plot 995 to the 2nd defendant, which the plaintiff claims. With competing titles exhibited, the court found a prima facie case, leaving the ultimate question of success to trial.

p. 2
02

Irreparable loss

Holding

Not established; none pleaded

Reasoning

The applicant did not plead irreparable loss, only asserting generally that the property was in danger of being wasted without specifying the nature of the wastage. The 2nd defendant was already in occupation when the application was filed, further undermining the claim.

p. 2
03

Balance of convenience

Holding

Not discharged in the applicant's favour

Reasoning

Both parties held title deeds. Restraining the 2nd defendant's access without hearing evidence would assume the plaintiff's claim supersedes the 1st defendant's, altering the status quo. The court therefore preserved the position existing prior to the application and limited injunctive relief to restraint on transfer, alienation or disposal.

p. 2

Legal principles established

#
  • Exhibiting competing titles establishes a prima facie case, though whether the claim will succeed is a matter for trial
  • A party must plead and explain irreparable loss; a bare assertion of danger of wastage is insufficient
  • Where neither side's claim can be preferred on the papers, the justifiable status quo is that existing prior to the application

Court orders

#
  1. 1.Temporary injunction restraining the defendants from transferring, alienating and/or disposing of the disputed portion comprised in L.R 979/Rong'e/Nyika and/or L.R 995/Rong'e/Nyika measuring 1.05 ha pending hearing and determination of the suit
  2. 2.The order prohibiting alienation and/or transfer may be registered on both title deeds
  3. 3.Prayers for trespass/occupation injunction and eviction refused
  4. 4.Each party to bear their respective costs of the application
Jurisdiction invoked
Original civil jurisdiction over land disputes (temporary injunction application in a land suit)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Hannington Mwamburi Masese v Appolo Mwasent Kmwonge & another [2017] KEELC 2162 (KLR)", Case Analysis (2017). Application dated 1st March 2017 in suit over plot No. 979/Rong'e/Nyika. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2162/eng@2017-07-31

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