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ELCPartially AllowedNot stated in the judgment· [2017] KEELC 2384 (KLR)

Willy Kamukea Kachepkon v Jane Chepkukat S. Lokwee & another [2017] KEELC 2384 (KLR)

Environment & Land Court
28 June 2017
MSMunyao Sila
1,253 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Nakuru court froze all development and land dealings on a disputed Kampi Ya Moto plot, letting the current occupants stay put until trial decides ownership.

What this practically means

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Executive summary

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The plaintiff sued over land parcel Kampi Ya Moto/Kampi Ya Moto Block 3/243, alleging that on 25 September 2008 he purchased it from Kaggai Thiong'o as Plot No. 11, later excised from the parent parcel Kampi Ya Moto/Kampi Ya Moto Block 3/196, and now holds title. He claimed that in April 2016 the 1st defendant trespassed and began erecting structures, asserting she had bought the land from the 2nd defendant in 2013. Together with his plaint he sought an interlocutory injunction restraining the defendants from the suit property pending trial, and in the suit seeks a declaration that the defendants' sale is fraudulent, null and void, cancellation of the 1st defendant's title, and a permanent injunction. Kaggai Thiong'o swore a supporting affidavit confirming the sale to the plaintiff and denying any dealings with the defendants. The defendants relied on a replying affidavit of the 2nd defendant, asserting her late husband purchased the land through an agreement drawn by M/s Kiplenge & Kurgat Advocates, and that the land was transferred to her with Kaggai Thiong'o's authority. The plaintiff and Kaggai Thiong'o swore supplementary affidavits disputing the defendants' documents. Applying the Giella vs Cassman Brown principles, Munyao Sila J found the facts hotly contested and incapable of resolution at the interlocutory stage, and decided the application on a balance of convenience, which tilted towards maintaining the status quo. The court restrained any construction or structural development, allowed the defendants to remain in occupation, barred all dealings over the property, and issued an order of inhibition over the register until the suit is determined, with costs in the cause.

Key legal issues

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01

Whether an interlocutory injunction should issue where both parties claim title through the same previous owner and the facts are hotly contested

Holding

The court could not determine where the truth lies at the interlocutory stage and instead maintained the status quo on the balance of convenience, restraining construction and dealings while leaving the defendants in occupation

Reasoning

Both parties agreed the land was previously owned by Kaggai Thiong'o, who supported the plaintiff's claim and denied dealing with the defendants. The defendants asserted a purchase through the 2nd defendant's late husband. These contested facts could only be resolved after a full hearing on merits. Since either defendant had begun construction and the land risked being permanently wasted, the balance of convenience favoured maintaining the status quo, with an inhibition to safeguard the title.

p. 2
02

Whether an order of inhibition should issue to protect the title pending trial

Holding

An order of inhibition was issued against registration of any disposition over the suit land until the suit is heard and determined

Reasoning

Because neither party's title could be verified at the interlocutory stage and no party was to sell, charge, lease or deal with the property, the court inhibited registration of any disposition in the register of the suit land to preserve the subject matter of the litigation and protect the plaintiff's registered title from further dealings.

p. 2

Legal principles established

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  • An application for injunction is assessed on the principles in Giella vs Cassman Brown: prima facie case with probability of success, irreparable loss, and balance of convenience where the court is in doubt
  • Where facts are hotly contested and cannot be determined at interlocutory stage, the application is best decided on a balance of convenience

Court orders

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  1. 1.Defendants restrained from constructing or embarking on any structural developments on the suit land pending hearing and determination of the suit
  2. 2.Defendants to remain in occupation pending hearing of the suit but with no permission to embark on any structural developments
  3. 3.No party to sell, charge, lease or enter into any dealings over the suit property pending hearing and determination of the suit
  4. 4.Order of inhibition inhibiting registration of any disposition in the register of the suit land, Kampi Ya Moto/Kampi Ya Moto Block 3/243, until the suit is heard and determined
  5. 5.Costs in the cause

Authorities

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Cases cited (1)

  • Giella vs Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel Kampi Ya Moto/Kampi Ya Moto Block 3/243 (statutory provision not expressly cited in the judgment)

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, "Willy Kamukea Kachepkon v Jane Chepkukat S. Lokwee & another [2017] KEELC 2384 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2384/eng@2017-06-28

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