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ELCDismissedNotice of Motion dated 21st February, 2017 (suit re: TRM/ENAENYENY/14)· [2017] KEELC 2924 (KLR)

Kibos Ole Tome & 3 others v Ann Nyaboke Wachi & 4 others [2017] KEELC 2924 (KLR)

Environment and Land Court
11 May 2017
MKMohamed N. Kullow
701 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed landowners' injunction because they offered no evidence rebutting buyers' 1997 sale agreements—allegations alone don't stop occupation.

What this practically means

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Executive summary

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The Applicants, registered owners of parcel TRM/ENAENYENY/14, moved the court by Notice of Motion dated 21st February, 2017 seeking an injunction to restrain the Defendants from entering, cultivating, leasing, transferring or otherwise interfering with their occupation and possession of the parcel. Interim injunctive orders had been granted ex parte on filing. The Applicants asserted they were the lawful registered owners in occupation, while the Respondents had encroached and tilled portions in readiness for planting. The Respondents, opposing through separate replying affidavits, conceded the Applicants' registration but asserted they were purchasers for value, having bought the portions they occupy from the 1st Applicant around 1997, annexing executed sale agreements and demonstrating continued possession, cultivation and planting. The 1st Applicant, in a further affidavit, dismissed the 2nd and 3rd Defendants' agreements as falsehoods, claiming he sought to refund the purchase monies but the Respondents refused. The 5th Respondent alleged non-disclosure of a pending suit, Kisii ELC No. 271 of 2016. Counsel elected to dispose of the application on the affidavits without oral submissions. The court framed two issues: whether the Respondents purchased land from the plaintiffs, and whether the Applicants established a prima facie case with probability of success. Applying the Giella v Cassman Brown test, the court found the sale evidence unrebutted and held the validity of the transactions should be determined at full hearing. The application was dismissed with costs to the Respondents and the ex parte orders of 21st February, 2017 were vacated.

Key legal issues

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01

Whether the Applicants established a prima facie case with a probability of success

Holding

No; the Respondents produced sale agreements executed by the 1st Applicant and showed long possession, which the Applicants failed to rebut save by alleging falsehood

Reasoning

The Respondents asserted they purchased portions from the 1st Applicant around 1997 and annexed executed sale agreements, remaining in occupation and cultivation. The 1st Applicant merely dismissed the agreements as falsehoods and offered to refund money, without rebutting the evidence. The validity of the transactions is a matter for determination at full hearing, so no prima facie case was shown.

p. 2

Legal principles established

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  • An applicant for an interlocutory injunction must show a prima facie case with a probability of success, that damages are not adequate compensation, and that the balance of convenience tilts in their favour

Court orders

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  1. 1.The Applicants' application dated 21st February, 2017 is dismissed with costs to the Respondents
  2. 2.The ex parte orders granted on 21st February, 2017 are vacated

Authorities

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Cases cited (1)

  • GEILLA VERSUS CASSMAN BROWN AND COMPANY LIMITED
    (1973) EA 358
Jurisdiction invoked
Inherent jurisdiction of the court on interlocutory application for injunction (No specific provision invoked)

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, "Kibos Ole Tome & 3 others v Ann Nyaboke Wachi & 4 others [2017] KEELC 2924 (KLR)", Case Analysis (2017). Notice of Motion dated 21st February, 2017 (suit re: TRM/ENAENYENY/14). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2924/eng@2017-05-11

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