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ELCAllowed· [2017] KEELC 3757 (KLR)

Restuta Flora Khavere Shiramba & another v Wellington Ekhuya Odwogo & another [2017] KEELC 3757 (KLR)

Environment and Land Court
20 June 2017
NMN.A. Matheka
1,515 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kakamega stopped defendants from interfering with land the buyers proved they owned with a title deed and sale agreement.

What this practically means

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Executive summary

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The applicants moved the court by notice of motion dated 16th November 2015, brought under Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules and Sections 1A and 3A of the Civil Procedure Act, seeking temporary injunctions restraining the defendants from alienating, entering, trespassing on, constructing on, depositing materials on, or otherwise interfering with their parcel No. BUTSOTSO/SHIKOTI/15827 pending hearing of the application and of the suit. The applicants claimed joint proprietorship arising from a sale agreement dated 17th April 2012 with the defendants' grandmother and uncle, annexed a title deed, alleged vacant possession and substantial developments, and asserted that the defendants entered the plot, deposited building materials and began constructing structures, exposing them to irreparable loss. The respondents opposed, contending the parcel was fraudulously created by illegal sub-division of BUTSOTSO/SHIKOTI/2835, registered to their deceased father Daniel Odwogo Amaholo, through a succession petition founded on a forged death certificate; they noted a pending summons for revocation of grant in Kakamega High Court Succession Cause No. 358 of 2010 and alleged the applicants purchased without inquiries while the family remained in occupation. The court applied the Giella v Cassman Brown principles, found the applicants had proved ownership by documentary evidence, demonstrated a prima facie case with probability of success, and showed irreparable loss not compensable in damages. It granted the temporary injunction as sought, with costs of the application in the cause.

Key legal issues

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01

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

Holding

Yes - the applicants demonstrated ownership of the suit parcel through documentary evidence and thus a prima facie case.

Reasoning

The applicants asserted joint proprietorship of parcel No. BUTSOTSO/SHIKOTI/15827, purchased on 17th April 2012, and annexed a sale agreement and title deed. They alleged the defendants entered the plot, deposited building materials and began constructing structures. The court found this documentary proof of ownership sufficient to show a prima facie case with a probability of success at trial.

p. 3
02

Whether damages would be an adequate remedy

Holding

Yes - the applicants showed they would suffer loss not adequately compensable in damages, warranting the injunction.

Reasoning

The applicants contended the defendants were using force to usurp ownership of the plot and that the land would be put to waste if not restrained, subjecting them to irreparable loss as they could not utilise their lawfully acquired property. The court accepted that unless the order was granted, the applicants would suffer loss which could not be adequately compensated in damages, and found the application had merit.

p. 3

Legal principles established

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  • An application for an interlocutory injunction is determined on the Giella v Cassman Brown principles: prima facie case with probability of success, inadequacy of damages, and balance of convenience if in doubt.
  • An interlocutory injunction is an equitable relief which may be denied to an applicant whose conduct does not meet the approval of a court of equity.

Court orders

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  1. 1.A temporary injunction pending the hearing and final determination of the suit restraining the defendants, their agents, employees, servants, workers and any other person acting under their direction from alienating, moving onto, trespassing on, digging trenches and/or foundations, constructing any structures, depositing building materials or in any manner interfering with the plaintiffs' quiet and/or peaceful occupation, possession and/or use of parcel No. BUTSOTSO/SHIKOTI/15827
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 & 3
  • Civil Procedure ActSections 1A & 3A

Cases cited (1)

  • GIELLA VS CASSMAN BROWN & CO. LTD
    1973 E.A 358
Jurisdiction invoked
Order 40 Rules 1, 2 & 3 of the Civil Procedure Rules and Sections 1A & 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, "Restuta Flora Khavere Shiramba & another v Wellington Ekhuya Odwogo & another [2017] KEELC 3757 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3757/eng@2017-06-20

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