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ELCDismissedNot stated in the judgment as provided· [2018] KEELC 1109 (KLR)

Estate of the late Michael Kipchirchir Bor (Represented by Josephat Kiprugut Koske) v Sarah Chepchirchir Kipleitich [2018] KEELC 1109 (KLR)

Environment and Land Court
25 October 2018
952 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to evict an occupier before trial, ruling that injunctions which effectively remove someone from land need special circumstances.

What this practically means

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Executive summary

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This was a ruling on the plaintiff's application dated 7/8/2018 seeking a temporary injunction to restrain the defendant from entering, cultivating, grazing, planting, cutting trees or interfering with land comprised in Title No. Kapomboi/Kapomboi Block 3/Kobos/633, pending hearing of the suit, together with an order directing the OCS, Kitale Police Station to enforce the orders. The application was brought under Section 63(c) of the Civil Procedure Act and Order 40 and Order 51 of the Civil Procedure Rules (2010). The plaintiff's case was that ownership had been determined by the Kapomboi Land Disputes Tribunal and adopted as judgment of the court, and that the defendant was a trespasser who had forcefully ploughed the land and built structures. The defendant, the widow and successor of the late Elijah Leitich, deponed that the tribunal lacked jurisdiction, its panel was not gazetted, and that the land was registered in her name as successor to her late husband's estate; she had admittedly been in occupation for a long time. The court held that the injunction sought would in effect amount to eviction or a mandatory injunction, which cannot be granted at the interlocutory stage absent very special circumstances, applying the test in Shariff Abdi Hassan v Nadhif Jama Adan requiring a high sense of assurance. The applicant also failed to demonstrate irreparable loss not compensable by damages, and the orders duplicated those in the plaint. The court found it appropriate on the balance of convenience to maintain the status quo pending trial and dismissed the application with costs to the defendant.

Key legal issues

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01

Whether an interlocutory injunction could issue restraining a defendant admittedly in occupation of the suit land

Holding

No, because such an order would amount to eviction or a mandatory injunction, which cannot be granted interlocutorily absent special circumstances

Reasoning

The court found that the defendant had admittedly been on the land for a long time, a fact implicitly supported by the applicant's own affidavit. An order restraining her from entering or remaining would effectively evict her, thus being mandatory in substance. Such orders require special circumstances and a high sense of assurance, absent here.

p. 2
02

Whether the ordinary principles for a temporary injunction were satisfied

Holding

No; the applicant failed to demonstrate irreparable loss not compensable by damages, and the orders sought duplicated those in the plaint

Reasoning

The applicant's affidavit was brief and focused only on the defendant's refusal to vacate; it did not show that damages would be inadequate. Further, the orders sought in the application were the same as those sought in the plaint, indicating no distinct urgency warranting interlocutory relief.

p. 2
03

The appropriate course pending trial

Holding

Maintenance of the status quo between the parties pending the hearing and determination of the suit

Reasoning

Weighing the competing claims over the suit land and the defendant's established occupation, the court found it appropriate on the balance of convenience to preserve the existing position rather than alter it by way of an interlocutory injunction, leaving substantive ownership to trial.

p. 2

Legal principles established

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  • An interlocutory application for an injunction that would in effect amount to eviction or a mandatory injunction cannot be granted at the interlocutory stage unless very special circumstances prevail
  • A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and only in clear cases, on a higher standard than for a prohibitory injunction

Court orders

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  1. 1.The application dated 7/8/2018 is dismissed
  2. 2.Status quo to be maintained between the parties pending the hearing and determination of the suit
  3. 3.Costs of the application awarded to the defendant

Authorities

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Legislation

  • Civil Procedure ActSection 63(c)
  • Civil Procedure Rules (2010)Order 40 Rules 1, 3, 4; Order 51 Rules 1 and 3

Cases cited (2)

  • Beatrice Ngina Mwai & Another -vs- Gichine Mwai & Another
    2010 eKLR
  • Shariff Abdi Hassan -vs- Nadhif Jama Adan
    C.A. No. 121 of 2005 (unreported)
Jurisdiction invoked
Section 63(c) of the Civil Procedure Act and Order 40 Rules 1, 3, 4 and Order 51 Rules 1 and 3 of the Civil Procedure Rules (2010)

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, "Estate of the late Michael Kipchirchir Bor (Represented by Josephat Kiprugut Koske) v Sarah Chepchirchir Kipleitich [2018] KEELC 1109 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1109/eng@2018-10-25

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