Gregory Hayes Dow suing through David Apuuli Kandole v Geoffrey Kibet Ngetich & 2 others [2018] KEELC 1199 (KLR)
The bottom line
#The Kericho Environment and Land Court refused a landowner's injunction because dueling title deeds meant ownership could only be settled at a full trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case with a probability of success
He did not, because title to the suit property is hotly contested between the parties and ownership can only be determined at a full hearing
The plaintiff relied on a title deed issued on 11th August 2016, while the 1st defendant produced a title deed issued on 22nd April 1998 and a certificate of official search dated 23rd March 2018 showing the land still registered in the 1st defendant's name. With both parties laying claim to the property on competing titles, the court found the plaintiff had not demonstrated an apparently infringed right requiring rebuttal, and ownership could only be resolved after a full hearing.
Whether the balance of convenience favoured the plaintiff and whether the relief sought was in substance mandatory
Granting the injunction would amount to evicting the 1st defendant who had repossessed pursuant to Rent Tribunal orders, tantamount to a mandatory injunction, which was not warranted absent exceptional circumstances
Although the plaintiff failed the first Giella test and the other tests need not be examined, the court considered that the 1st defendant had repossessed the premises pursuant to orders of the Rent Tribunal of 29th March 2018. An interlocutory injunction against him would effectively evict him, amounting to a mandatory injunction for which the Kenya Breweries v Okeyo standard applies and no exceptional circumstances were demonstrated.
Legal principles established
#- A mandatory injunction ought not to be granted at the interlocutory stage in the absence of special circumstances, and only in clear cases, on a higher standard of assurance than for a prohibitory injunction
- A permanent injunction sought at interlocutory stage preempts the defendant's right to a trial and will be granted only in exceptional circumstances
Court orders
#- 1.The plaintiff's application dated 10th July 2018 is dismissed
- 2.Costs of the application awarded to the 1st and 3rd Respondents
- Jurisdiction invoked
- Order 40 Rule 1 and Order 51 of the Civil Procedure Rules and section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gregory Hayes Dow suing through David Apuuli Kandole v Geoffrey Kibet Ngetich & 2 others [2018] KEELC 1199 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1199/eng@2018-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.