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ELCPartially AllowedNot stated in the judgment· [2017] KEELC 2766 (KLR)

Abdisalan Gulla Hamed v Daniel Ngaruthi Kanampiu [2017] KEELC 2766 (KLR)

Environment and Land Court
3 May 2017
731 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

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A Kenyan land buyer's family won court protection of their purchased plot, but the court capped that protection at twelve months.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of Gulia Mohammed Abdi (deceased), moved the Environment and Land Court at Meru by Notice of Motion dated 9th December 2016 seeking temporary injunctions restraining the defendant from transferring, leasing, charging or selling an unsurveyed parcel of land measuring 2½ acres at Maili Tatu in Isiolo, pending hearing of the application and of the suit, together with an order directing the O.C.S Tigania Police Station to ensure compliance, and costs in the cause. The plaintiff deponed that the deceased entered into a written sale agreement dated 15th March 2005 with the defendant as vendor, paying the agreed price of Ksh. 15,000 before advocate Mugambi Mitheka, who witnessed execution and acknowledgment of receipt. The deceased's family took possession and farmed the land for over six years until the defendant threatened them with harm and chased them from the property. The plaintiff reported the matter to police, obtaining O.B. Number 12/18/10/2016, and asserted a violation of the constitutional right to property. The court granted the defendant time to obtain counsel, but he made no appearance on the return date and filed no response, leaving the application unopposed. Delivering its ruling on 3rd May 2017, the court allowed the application as unopposed, granted injunctive relief protecting the suit land, but confined the injunctive orders to a period of twelve months and made no orders as to costs.

Key legal issues

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01

Entitlement to a temporary injunction over land sold under an agreement where the purchaser has since died and taken possession

Holding

On the unopposed material - a written sale agreement dated 15th March 2005 executed before an advocate, full payment of Ksh. 15,000/= acknowledged before the advocate, and occupation and farming of the land for over six years - the plaintiff administrator established sufficient grounds for a temporary injunction protecting the estate's possession pending trial

Reasoning

The plaintiff deponed that the deceased entered a sale agreement with the defendant as purchaser, paid the entire consideration, and that the family took possession and farmed the land for more than six years before being threatened and chased away by the defendant. The defendant was served and given time to obtain counsel but did not appear or file a response, leaving the application uncontroverted. The court therefore allowed the application, though it confined the injunction to a twelve-month period rather than leaving it open-ended until determination of the suit.

p. 2
02

Consequences of non-attendance and non-filing of a response by the defendant

Holding

The defendant, having been given indulgence to obtain counsel and having failed to appear on the return date, allowed the application to stand unopposed, and it was allowed on that basis

Reasoning

When the matter first came before the court, the defendant requested two months to secure counsel, which the court granted up to 3rd April 2017. On that date the defendant made no appearance. No replying affidavit or grounds of opposition were on record. The court therefore treated the application as unopposed and allowed it, with the qualification that the injunctive orders would lapse after twelve months, and made no order as to costs.

p. 2

Legal principles established

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  • An unopposed application for temporary injunction may be allowed, but the court may limit the duration of the injunctive orders rather than grant them pending hearing and determination without qualification

Court orders

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  1. 1.The Notice of Motion dated 9th December 2016 is allowed as unopposed
  2. 2.A temporary injunction restraining the defendant, his agents and servants from transferring, leasing, charging or selling the plaintiff's unsurveyed parcel of land measuring 2 ½ Acres situated at Maili Tatu in Isiolo pending the hearing and determination of the suit
  3. 3.The injunctive orders to remain in force for 12 months
  4. 4.No orders as to costs
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land

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, "Abdisalan Gulla Hamed v Daniel Ngaruthi Kanampiu [2017] KEELC 2766 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2766/eng@2017-05-03

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