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ELCOtherNotice of motion dated 25th July 2016 (suit by plaint of even date)· [2017] KEELC 3560 (KLR)

Stewart Jalang’o Agot v George Okoth Odongo [2017] KEELC 3560 (KLR)

Environment and Land Court
1 March 2017
SKS. M. Kibunja
1,436 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner holding a title certificate was denied an injunction because the defendant was already living on the land, so both sides had to keep things unchanged.

What this practically means

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Executive summary

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In this first-instance ruling of the Environment and Land Court, Stewart Jalang'o Agot, the plaintiff, sought by notice of motion dated 25th July 2016 a temporary injunction restraining George Okoth Odongo, the defendant, from trespassing on, encroaching on or in any way interfering with land parcel L.R. No. North Sakwa/Maranda/1622, of which he claimed to be registered proprietor since 13th February 2015, alleging the respondent entered the land and erected a mabati structure on 9th July 2016. The respondent opposed, describing himself as the son of the late Edwin Okelo Agot Okech, the plaintiff's brother, asserting that the suit land belonged to his late father's estate and that the plaintiff had procured registration through Kisumu H.C. Succession Cause No.1349 of 2013 without disclosing that the deceased left children; he had filed summons for revocation of the grant and a defence with counterclaim. The court framed only the question of a prima facie case and costs. It found the plaintiff acquired registration through transmission under the succession grant, but the respondent was already in possession when the suit was filed, his revocation summons was pending before the High Court, and an injunction in terms of prayer 3 would amount to eviction, an undesirable result. The court instead marked the motion settled by ordering both parties to maintain the status quo prevailing when the suit was filed, restraining any further permanent construction pending the revocation proceedings, fixed a mention to track their progress, and ordered the costs of the motion to be in the cause.

Key legal issues

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Whether the Applicant established a prima facie case with a probability of success warranting a temporary injunction

Holding

The court declined a conventional injunction. Although the Applicant held title acquired through transmission, the Respondent was already in possession when the suit was filed, had lodged a counterclaim and had pending summons for revocation of the grant under which the Applicant's title derived; a prayer 3 order would amount to eviction.

Reasoning

The court found the Applicant acquired registration through transmission via the grant in Kisumu H.C. Succession Cause No.1349 of 2013. The Respondent had established a home on the land in 2015 (or entered on 9th July 2016 per the Applicant), filed a defence and counterclaim, and had pending summons to revoke the grant before the High Court. Evicting him by injunction was undesirable; preserving status quo by restraining permanent construction was the appropriate interim measure.

p. 3

Legal principles established

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  • Where the defendant is already in occupation of the suit land and has pending proceedings challenging the plaintiff's root of title, a temporary injunction would effectively evict him and will not issue; status quo is preserved instead
  • It is important to maintain the status quo pending determination of proceedings that challenge the plaintiff's title where a defendant has lodged a counterclaim over the suit land

Court orders

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  1. 1.The notice of motion dated 25th July 2016 is marked settled through an order that parties maintain the status quo existing at the time the suit was filed on the use and occupation of land parcel North Sakwa/Maranda/1622
  2. 2.Both parties restrained from any or further construction of a permanent nature likely to alter the value and physical condition of the suit land
  3. 3.The status quo order to remain in force pending the hearing and determination of the Respondent's revocation of grant proceedings in Kisumu H.C. Succession Cause No.1349 of 2013
  4. 4.The matter to be fixed for mention to find out the progress of the revocation proceedings
  5. 5.Costs of the notice of motion be in the cause
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute concerning land parcel L.R. No. North Sakwa/Maranda/1622

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, "Stewart Jalang’o Agot v George Okoth Odongo [2017] KEELC 3560 (KLR)", Case Analysis (2017). Notice of motion dated 25th July 2016 (suit by plaint of even date). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3560/eng@2017-03-01

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