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ELCOtherNotice of Motion dated 9th March, 2018 (suit land KAJIADO/LORNGUSUA/2119)· [2018] KEELC 624 (KLR)

Samuel Sopon Parashuru v Taporu Masene & 9 others [2018] KEELC 624 (KLR)

Environment and Land Court
12 November 2018
COChristine Ochieng
1,463 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner with a title deed still couldn't get a mandatory injunction because the defendants raised a genuine dispute about how that title was obtained.

What this practically means

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Executive summary

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This was an interlocutory ruling in the Environment and Land Court at Ngong on the Plaintiff's Notice of Motion dated 9th March 2018, seeking a temporary mandatory injunction over land parcel KAJIADO/LORNGUSUA/2119, a subdivision of KAJIADO/LORNGUSUA/1173 to which the Plaintiff, Samuel Sopon Parashuru, held a certificate of title. The Plaintiff alleged that the 2nd to 6th Defendants demolished his perimeter fence on 8th December 2015 and that the 9th Defendant placed a caveat on the suit land. The 1st to 6th Defendants, through a replying affidavit sworn by the 6th Defendant Noah R. Nkunkat, opposed the application as an abuse of process, noting the Plaintiff had withdrawn a similar earlier application. They contended that the parent parcel formed part of land belonging to Ilpartimaru Group Ranch, that the High Court in HCCC No. 561 of 2000 ordered a repeat subdivision and declared null and void title deeds issued in contravention of that decree, and that the site claimed by the Plaintiff was set aside as a public utility for Ilmarba Trading Centre. The court framed a single issue: whether the Plaintiff was entitled to an interlocutory mandatory injunction. Relying on Kenya Breweries Ltd v Washington Okeyo, the court held that such an injunction requires special circumstances. Because the Defendants raised a serious question whether the Plaintiff's title, issued after the decree in HCCC No. 561 of 2000, complied with that decree, the court declined the mandatory injunction. However, since the Plaintiff held title and was in occupation, the court ordered that the prevailing status quo be maintained, with the Plaintiff remaining in possession and occupation pending the outcome of the suit, with costs of the application in the cause.

Key legal issues

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Whether an interlocutory mandatory injunction should issue to the registered proprietor of the suit land

Holding

No; the application was declined despite the Plaintiff's registration, but the status quo was preserved

Reasoning

Although the Plaintiff produced a certificate of title showing registration over the suit land, the Defendants raised a bona fide dispute that the title emanated from group ranch land subdivided contrary to a High Court decree in HCCC No. 561 of 2000 directing a repeat subdivision. The court could not determine at the interlocutory stage whether the Plaintiff's registration obeyed or defied that decree. A mandatory injunction at the interlocutory stage requires special circumstances which were not demonstrated, so it was refused. However, since the Plaintiff holds title and is in occupation, the status quo was maintained pending full trial.

p. 2

Legal principles established

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  • A mandatory injunction may be granted on an interlocutory application only in special circumstances, where the case is clear, the act is simple and summary, or the defendant attempted to steal a march on the plaintiff

Court orders

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  1. 1.Prevailing Status Quo be maintained and the Plaintiff to remain in possession as well as occupation of the suit land pending the outcome of the Suit
  2. 2.The costs of this application to be in the cause
  3. 3.The parties are urged to comply with Order 11 and set the suit down for hearing as soon as possible

Authorities

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Legislation

  • Civil Procedure Actsections 3A and 63(e)
  • Civil Procedure RulesOrder 51(1); Order 11

Cases cited (8)

  • Mbira V Gacuhi
    (2002) EA 137
  • Kenya Breweries Ltd Vs Washington Okeyo
    (2002) IEA 109
  • Jaj Super Cash and Carry Ltd Vs Nairobi City Council & 20 Others
    Civil Appeal No. 111 of 2002
  • Locabaill International Finance Ltd V. Agroexport
    (1986) 1 All ER
  • Chalicha FCS Ltd V Odhiambo & 9 others
    1987 KLR
  • Uhuru Highway Development Limited Vs Central Bank of Kenya Ltd and 2 others
    (1996) eKLR
  • Panari Enterprises Limited Vs MS LIJOODI & Anor
    ELC No. 779 of 2013
  • Christopher Kitur Kipwambok Vs Vipul Ratilal Dodhia & Anor
    ELC Case No. 65 of 2013
Jurisdiction invoked
Sections 3A and 63(e) of the Civil Procedure Act and Order 51(1) of the Civil Procedure Rules

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, "Samuel Sopon Parashuru v Taporu Masene & 9 others [2018] KEELC 624 (KLR)", Case Analysis (2018). Notice of Motion dated 9th March, 2018 (suit land KAJIADO/LORNGUSUA/2119). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/624/eng@2018-11-12

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