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ELCAllowedCivil Suit No 52 of 2016· [2017] KEELC 2807 (KLR)

Joyce Chelangat Korir v Bernard Kimutai Tonui & 2 others [2017] KEELC 2807 (KLR)

Environment and Land Court
12 May 2017
JOJ.M ONYANGO
963 words in judgment
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The bottom line

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A registered Kenyan landowner with a title deed can get a court order protecting her use of the land until the main case is decided.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kericho on the Plaintiff's Notice of Motion dated 19th September 2016, brought under Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking an injunction to restrain the defendants from interfering with her quiet enjoyment and occupation of L.R No KERICHO/TEBESONIK/354 measuring 1.6 hectares. The plaintiff averred that in September 2014 the defendants jointly and forcibly entered the land, sealed off the gate and began tilling it, claiming to be its rightful owners. She attached her title deed, Green Card, transfer forms and Land Control Board consent. The application was opposed through a Replying Affidavit sworn by the 3rd defendant, whose counsel argued the title was a forgery, that the mutation and transfer documents did not match, that the original registered owner held the land in trust for her sons, and that no letters of administration had been taken out in the estate of the plaintiff's deceased husband. Counsel relied on National Bank of Kenya v Lawrence Otweyo Gumbe, restating the Giella v Cassman Brown principles. The court held that the title deed established a prima facie claim of ownership and that the defendants' allegations, though weighty, could only be tested at a full hearing, noting they had filed no defence. Finding that the applicant had met at least one Giella principle, the court allowed the application in terms of prayers 3, 4 and 5, issued an injunction restraining the defendants from interfering with the plaintiff's occupation and use of the land pending the hearing and determination of the suit, directed the parties to expedite the hearing, and ordered that costs of the application be in the cause.

Key legal issues

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01

Whether the applicant established a prima facie case for an interlocutory injunction

Holding

The court found that production of the title deed showed the applicant was prima facie the owner and entitled to occupation and use of the land without interference, satisfying at least one Giella principle.

Reasoning

The court applied the Giella v Cassman Brown principles. It held it need only be satisfied that the applicant met at least one of the principles. The title deed and green card attached demonstrated ownership. The defendants' allegations of forgery, trust and succession issues raised in the Replying Affidavit were weighty but could only be canvassed and tested by cross-examination at a full hearing, not on an interlocutory application.

p. 2
02

Effect of the defendants' failure to file a defence

Holding

The defendants' failure to file a defence despite being served weakened their opposition; their Replying Affidavit allegations could not defeat the application at the interlocutory stage.

Reasoning

Counsel for the applicant argued the Replying Affidavit stood on quicksand since no defence had been filed. The court noted that for reasons best known to themselves the defendants had neither filed a defence nor sought leave to do so out of time, and observed that the averments in the Replying Affidavit, though weighty, could only be subjected to cross-examination at a full hearing.

p. 2

Legal principles established

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  • A plaintiff who attaches a title deed in her name shows a prima facie claim to ownership of the suit land sufficient for an interlocutory injunction, and averments in a replying affidavit raising disputed issues can only be tested at a full hearing.

Court orders

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  1. 1.Pending the hearing and determination of the suit, an injunction restraining the Defendants/Respondents by themselves, their agents, servants, employees or anyone acting on their behalf from preventing the applicant from entering, remaining on, or cultivating L.R no KERICHO/TEBESONIK/354 or interfering with the applicant's occupation and use of the said land
  2. 2.The parties to take such steps as are necessary to expedite the hearing of the case
  3. 3.Costs of the application be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 7 Rule 1
  • Civil Procedure ActSection 3A

Cases cited (2)

  • Giella Vs Cassman Brown
  • National Bank of Kenya Vs. Lawrence Otweyo Gumbe
    Civil Appeal No 93 of 2002
Jurisdiction invoked
Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "Joyce Chelangat Korir v Bernard Kimutai Tonui & 2 others [2017] KEELC 2807 (KLR)", Case Analysis (2017). Civil Suit No 52 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2807/eng@2017-05-12

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