Sang v Sang & 3 others (Environment & Land Case 72 of 2015) [2017] KEELC 3874 (KLR)
The bottom line
#The Environment & Land Court in Kericho blocked men claiming to be the owner's sons from occupying his land until the full case is heard.
What this practically means
#Executive summary
#Key legal issues
#Whether an interlocutory injunction should issue restraining the defendants from the suit land
Granted on the balance of convenience in favour of the plaintiff, who was in exclusive occupation since 2006, with the status quo before the defendants' September 2016 entry to be maintained.
The court applied Giella v Cassman Brown. Rather than resolve the competing claims of ownership and asserted customary rights of the alleged sons, it chose to decide on balance of convenience. The defendants had only recently entered the land, the plaintiff had been in exclusive occupation since 2006, and the defendants' whereabouts since then were unexplained in the replying affidavit.
Whether the 3rd and 4th defendants' asserted paternity and customary right to occupy the ancestral land justified their entry
Not determined finally; paternity could not be affirmed at the interlocutory stage and the defendants' claim did not displace the balance of convenience.
The court noted the divorce of 1978, that the children went to live with their mother and never lived with the plaintiff on the disputed land, that an alleged re-admission in 2006 ended with them being chased away, and that their residence from 2006 onwards was not deponed to. It held this was a question of fact that ought to have been in the replying affidavit.
Legal principles established
#- For an interlocutory injunction an applicant must show a prima facie case with probability of success, irreparable loss not compensable by damages, and if in doubt the court decides on balance of convenience.
Court orders
#- 1.Application for injunction allowed
- 2.Defendants ordered to stay away from the suit land Kericho/Getarwet/1029 pending hearing and determination of the case, i.e. the status quo prevailing before the 3rd and 4th defendants' entry in September 2016 is maintained
- 3.Costs of the application to be costs in the cause
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land parcel Kericho/Getarwet/1029 (interlocutory application filed with the plaint); no specific constitutional provision invoked.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sang v Sang & 3 others (Environment & Land Case 72 of 2015) [2017] KEELC 3874 (KLR)", Case Analysis (2017). Not stated in judgment (Kericho; suit over land parcel Kericho/Getarwet/1029). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3874/eng@2017-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.