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ELCAllowedNot stated in judgment (Kericho; suit over land parcel Kericho/Getarwet/1029)· [2017] KEELC 3874 (KLR)

Sang v Sang & 3 others (Environment & Land Case 72 of 2015) [2017] KEELC 3874 (KLR)

Environment & Land Court
3 February 2017
1,487 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 & 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

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Executive summary

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The plaintiff, registered owner of land parcel Kericho/Getarwet/1029, filed an application for injunction contemporaneously with the plaint, seeking to restrain the defendants from interfering with the land pending hearing of his suit for permanent injunction and general damages. He alleged that on 7 September 2016 the defendants forcibly evicted his purchaser, Richard Kipngetich Langat, from a 0.5-acre portion and had begun erecting structures on the land. The 1st and 2nd defendants are the plaintiff's brothers and asserted no claim over the land; the 3rd and 4th defendants claimed to be the plaintiff's sons by Mary Chebet Sang, divorced in 1978, and asserted a customary right to occupy the land as their ancestral home, filing a defence and counterclaim seeking declarations to that effect. Erick Sang, the 2nd defendant, deposed to the divorce, clan resolutions affirming paternity, and the plaintiff having readmitted and later expelled the family in 2006. Counsel tendered no authorities. Applying Giella v Cassman Brown, the court, unable to resolve the competing claims of ownership and paternity at the interlocutory stage, decided the application on the balance of convenience. Noting the plaintiff's exclusive occupation at least since 2006 and the defendants' recent entry in September 2016, with no explanation of where they had lived in the intervening decade, the court held the balance tilted toward the plaintiff. It allowed the application, ordered the defendants to stay away from the suit land pending hearing and determination, maintaining the status quo before September 2016, with costs in the cause. Dated, signed and delivered at Kericho on 3 February 2017 by Munyao Sila J.

Key legal issues

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01

Whether an interlocutory injunction should issue restraining the defendants from the suit land

Holding

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.

Reasoning

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.

p. 3
02

Whether the 3rd and 4th defendants' asserted paternity and customary right to occupy the ancestral land justified their entry

Holding

Not determined finally; paternity could not be affirmed at the interlocutory stage and the defendants' claim did not displace the balance of convenience.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Application for injunction allowed
  2. 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. 3.Costs of the application to be costs in the cause

Authorities

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Cases cited (1)

  • Giella vs Cassman Brown
    (1973) EA 358
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

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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, "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.