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ELCAllowedNotice of Motion dated 22nd June 2016· [2017] KEELC 3451 (KLR)

George Osogo Lijungu v Vemina Shanyisa & 2 others [2017] KEELC 3451 (KLR)

High Court of Kenya
9 March 2017
1,402 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court stopped a family land sale and eviction, ruling that removing someone from a matrimonial home of 35 years can't be fixed with money alone.

What this practically means

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Executive summary

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By Notice of Motion dated 22nd June 2016, the Plaintiff sought temporary injunctions restraining the defendants from dealing with parcel LANGAS 111/9 and barring the Land's Registrar, Uasin Gishu from registering the 3rd defendant, Everlyne Walekhwa, as proprietor. The Plaintiff deponed that in 1969 he bought land through his late father (being then too young to transact), later learned in 1981 that his step mother, the 1st defendant, had secretly sold that land, and on his father's advice accepted LANGAS 111/9 in exchange, on which he established his matrimonial home for over 35 years until people invaded the land in January 2016 and his sons were served with an eviction notice dated 31st December 2015. The defendants, through a replying affidavit, asserted that the 3rd defendant bought the suit plot from the 1st defendant for Kshs 850,000, and complained that the Plaintiff produced no documentary proof of ownership. Applying the Giella v Cassman Brown conditions, the court found ownership of the unregistered suit property unclear on the documents, such that a conclusive prima facie case could not be found at the interlocutory stage. However, it held that unceremonious removal from a matrimonial home occupied for over 35 years would cause irreparable injury not adequately compensable in damages, and that the balance of convenience favoured the Plaintiff who remained in occupation while the 3rd defendant had never occupied. The court allowed the application, with costs in the cause, and directed compliance with Order 11 and fixation of the main suit for hearing within 30 days.

Key legal issues

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01

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

Holding

The court found it difficult to conclude conclusively that a prima facie case had been established since ownership of the unregistered suit property was unclear on the documents.

Reasoning

The Plaintiff produced no title documents as the suit land was unregistered, though the defendants did not controvert the claim of exchange of NANDI/KAMOBO/681 registered in the late father's name and later sold. Letters suggested an unresolved dispute over the property. Given the unclear ownership, conclusive finding could only follow a full hearing.

p. 3
02

Whether the Plaintiff would suffer irreparable injury not compensable by damages

Holding

Yes - removal from the matrimonial home occupied for over 35 years would cause irreparable injury not adequately compensable by damages.

Reasoning

The Plaintiff and family had lived peacefully on the suit land for more than 35 years. The court applied the principle from Wairimu Mureithi v City Council of Nairobi that no injunction should normally issue if damages would be adequate, and found that unceremonious removal from a matrimonial home would cause irreparable injury.

p. 3
03

Where the balance of convenience tilts

Holding

The balance of convenience tilts in favour of the Plaintiff who is in occupation, as the 3rd defendant has never been in occupation.

Reasoning

The court, being in doubt as to ownership, considered that the Plaintiff and his sons remain on the land, while the 3rd defendant, who purportedly bought the parcel in December 2015 and issued an eviction notice, has not taken occupation. Interim injunctions being equitable remedies, discretion was exercised judiciously in favour of maintaining the status quo.

p. 3

Legal principles established

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  • Unceremonious removal of a person from his matrimonial home where he has enjoyed peace and quiet would not be adequately compensated by way of damages, and thus constitutes irreparable injury.
  • Where ownership of suit property is unclear from the interlocutory evidence, the question can only be unearthed during a full hearing, and the balance of convenience may tilt in favour of the party in occupation.

Court orders

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  1. 1.Temporary injunction restraining the defendants from entering, occupying, utilizing, fencing off, subdividing, transferring, disposing of, wasting, cultivating, trespassing onto or otherwise dealing with parcel No. LANGAS 111/9 pending hearing and determination of the suit
  2. 2.Temporary injunction restraining the Land's Registrar, Uasin Gishu from registering the 3rd defendant EVERLYNE WALEKHWA as the new proprietor of parcel LANGAS 111/9
  3. 3.OCS Langas Police Station to ensure compliance with the order
  4. 4.Costs of the application to be in the cause
  5. 5.Parties to comply with Order 11 and fix the main suit for hearing within 30 days

Authorities

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Legislation

  • Civil Procedure RulesOrder 11

Cases cited (3)

  • Giella Versus Cassman Brown
    (1973) EA 358
  • Hasmukh Khetshi Shah Vs Tinga Traders Ltd
    Civil Appeal No. 326 of 2002 KLR 46Z
  • Wairimu Mureithi -vs- City Council of Nairobi
    Civil Appeal No. 5 of 1979 KLR 332, 396
Jurisdiction invoked
Inherent jurisdiction of the High Court to grant interim injunctive relief pending hearing of the main suit (interlocutory application)

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, "George Osogo Lijungu v Vemina Shanyisa & 2 others [2017] KEELC 3451 (KLR)", Case Analysis (2017). Notice of Motion dated 22nd June 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3451/eng@2017-03-09

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