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ELCDismissedNot stated in judgment· [2018] KEELC 1199 (KLR)

Gregory Hayes Dow suing through David Apuuli Kandole v Geoffrey Kibet Ngetich & 2 others [2018] KEELC 1199 (KLR)

Environment and Land Court
19 October 2018
1,603 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiff, Edward Chache, moved the Court by Notice of Motion dated 10th July 2018 under Order 40 Rule 1 and Order 51 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, seeking an injunction restraining the defendants from taking possession of, entering, trespassing on, selling, transferring, charging or developing land parcel KERICHO/BOITO/1022. The plaintiff deponed that he purchased the property from the 1st defendant and annexed a title deed issued on 11th August 2016. The 1st defendant opposed, asserting he remained the registered proprietor on a title issued on 22nd April 1998, that he had leased the land to the Dows until 9th April 2017, and that after recovering possession through the Rent Tribunal on 29th March 2018 he had repossessed the premises. The court framed two issues: whether the plaintiff met the threshold for a temporary injunction, and costs. Applying Giella v Cassman Brown and Mrao v First American Bank, the court found the title hotly contested and held the plaintiff had not established a prima facie case with a probability of success, ownership being determinable only at a full hearing. Considering the balance of convenience, the court noted that enjoining the 1st defendant, who had repossessed under Tribunal orders, would amount to a mandatory injunction at the interlocutory stage, impermissible absent exceptional circumstances per Kenya Breweries v Okeyo and Jane Wambui Macharia. The application was dismissed with costs to the 1st and 3rd Respondents.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success

Holding

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

Reasoning

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.

p. 2
02

Whether the balance of convenience favoured the plaintiff and whether the relief sought was in substance mandatory

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The plaintiff's application dated 10th July 2018 is dismissed
  2. 2.Costs of the application awarded to the 1st and 3rd Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 51
  • Civil Procedure Actsection 3A

Cases cited (7)

  • Giella V Cassman Brown & Company Ltd
    1973 EA 358
  • Amir Suleiman V Amboseli Resort Limited
    (2004) eKLR
  • Films Rover International
    1986 3 All ER 772
  • Mrao V First American Bank of Kenya Limited
    (2003) eKLR
  • Kenya Breweries Ltd V Washington Okeyo
    (2002) eKLR
  • Jane Wambui Macharia V Wais Capital Limited & Another
    (2015) eKLR
  • Lansing Linde Limited V Kerr
    (1991) 1 WLR 251
Jurisdiction invoked
Order 40 Rule 1 and Order 51 of the Civil Procedure Rules and section 3A of the Civil Procedure Act

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, "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.