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ELCPartially AllowedNot stated in the extract provided· [2017] KEELC 2588 (KLR)

Wilfred Kiptum Kimalat v Wycliffe Onyango & 3 others [2017] KEELC 2588 (KLR)

Environment and Land Court
27 June 2017
KBK. BOR
437 words in judgment
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The bottom line

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A Kenyan landowner's attorney won protection of a Nairobi property from trespass and dealings, but the court refused to order eviction before a full hearing.

What this practically means

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Executive summary

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The Plaintiff, holding a power of attorney from James Kipkoech Kimalat, the registered owner of Nairobi/Umoja Block 107/1/1131, moved the court by an application dated 14th July 2016 seeking an injunction to restrain the 1st Defendant from trespassing on, developing or dealing with the Suit Property pending the hearing of the suit, a stay of registration of any dealings, and eviction of the 1st Defendant. The Plaintiff produced the certificate of lease dated 15th January 1998 and rates receipts, and the County Government of Nairobi confirmed by letter of 18th August 2014 that the Suit Property is registered in the name of James Kipkoech. The Plaintiff had also requested the Cabinet Secretary for Lands to investigate the allocation of the property. The 1st Defendant, said to be constructing on the property, could not be served personally and was served by substituted means through an advertisement in the Daily Nation of 6th June 2017; he did not enter appearance. The 2nd to 4th Defendants, through Mr. Terrell, did not oppose the application as the orders sought were directed at the 1st Defendant. The court granted prayers 4 and 5 of the application, restraining dealings on the Suit Property and staying registration pending hearing and determination of the suit, with enforcement by the OCS Buru Buru, and awarded the Plaintiff costs. The eviction prayer was refused as a final remedy not grantable temporarily.

Key legal issues

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01

Whether to grant interim injunction and stay of registration over the Suit Property

Holding

Granted - the court found it necessary to preserve the Suit Property pending trial, restraining dealings and staying registration.

Reasoning

The Plaintiff holds a power of attorney from the registered owner, produced the certificate of lease dated 15th January 1998 and rates receipts, and the County Government of Nairobi confirmed registration in the name of James Kipkoech. The 1st Defendant, served by substituted service, did not appear, and the 2nd to 4th Defendants did not oppose. The court considered it necessary to restrain dealings until the suit is heard and determined.

p. 2
02

Whether eviction could be ordered at interlocutory stage

Holding

Refused - eviction is a final order not grantable temporarily.

Reasoning

The court treated the eviction prayer as a final remedy which cannot be issued on a temporary basis at the interlocutory stage; it must await the hearing and determination of the suit.

p. 2

Legal principles established

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  • An order of eviction is a final remedy and cannot issue on an interlocutory/temporary basis before the suit is heard.

Court orders

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  1. 1.Prayers 4 and 5 of the application granted - the 1st Defendant restrained from trespassing on, developing or dealing with the Suit Property pending hearing and determination of the suit, and registration of any dealings on the Suit Property stayed
  2. 2.Orders to be enforced by the Officer Commanding Station, Buru Buru
  3. 3.Plaintiff awarded costs of the application
Jurisdiction invoked
Original civil jurisdiction over land disputes (interlocutory application in a land suit)

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, "Wilfred Kiptum Kimalat v Wycliffe Onyango & 3 others [2017] KEELC 2588 (KLR)", Case Analysis (2017). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2588/eng@2017-06-27

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