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ELCDismissedNot stated in the judgment· [2018] KEELC 1440 (KLR)

Catherine Jepkemei Mengich v Joseph Chemwetich Chebeta [2018] KEELC 1440 (KLR)

Environment and Land Court
24 September 2018
MNMwangi Njoroge
795 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff applied by notice of motion dated 16 April 2018 for a temporary injunction to restrain the defendant from trespassing upon, using, constructing on or wasting Plot No. 521 Kachibora Trading Centre, part of original LR No. 6614/3 Kiboimo Farm, pending inter partes hearing and pending determination of the main suit. The plaintiff averred she was the lawful owner of Plot No. 521 and that the defendant, allegedly the owner of Plot No. 523, had encroached upon and was developing her plot. The defendant swore a replying affidavit asserting he had purchased Plot No. 521 (measuring 50x100 feet) from Kipkurui Cheptum in 1998 and had occupied and developed it since; he alleged the plaintiff's list of beneficiaries was a forgery disowned by Kiboimo Farm. The plaintiff's further affidavit disputed the purchase and raised forgery allegations. The court observed there were two plot numbers in issue and conflicting claims of ownership and occupation which could not be resolved at the interlocutory stage. Finding that the defendant was already in occupation at the commencement of proceedings, the court held that granting the injunction would prevent the defendant accessing the land and disturb the status quo. Applying the Giella v Cassman Brown test, it found the plaintiff had not demonstrated a prima facie case or irreparable loss not compensable in damages. The application was dismissed, with both parties restrained from conducting any development on the land pending hearing of the main suit, costs in the cause.

Key legal issues

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01

Whether a temporary injunction should issue over Plot No. 521 Kachibora Trading Centre

Holding

The application failed; the status quo was to be maintained and both parties restrained from developing the land pending the hearing of the main suit

Reasoning

The court found conflicting affidavit evidence on ownership and plot numbers which could not be resolved at interlocutory stage. The plaintiff did not demonstrate a prima facie case or irreparable harm compensable only by damages. Since the defendant was already in occupation, granting the injunction would disturb the status quo rather than preserve it. The court dismissed the application and imposed mutual restraint on development pending trial.

p. 1
02

Whether allegations of forgery and non-payment of purchase price could be determined at interlocutory stage

Holding

No - such factual disputes must await the hearing of the main suit

Reasoning

The plaintiff disputed the defendant's purchase of the land and alleged forgery of documents. The court held that the truth of these serious allegations could not be ascertained on affidavit evidence at the interlocutory stage and would be resolved at trial.

p. 1

Legal principles established

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  • The Giella v Cassman Brown test governs the grant of temporary injunctions: prima facie case, irreparable loss not compensable by damages, and balance of convenience
  • Where a party is already in occupation of land at the commencement of proceedings, an injunction restraining access may disturb the status quo

Court orders

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  1. 1.Dismissal of the plaintiff's application dated 16/4/2018
  2. 2.Both parties shall not conduct any development on the land pending the hearing and determination of the main suit
  3. 3.Costs of the application to be in the cause
  4. 4.Parties to fix the main suit for hearing

Authorities

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Cases cited (1)

  • Giella Vs Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Not expressly stated; original civil jurisdiction over the land dispute (application for temporary injunction pending hearing of the suit)

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, "Catherine Jepkemei Mengich v Joseph Chemwetich Chebeta [2018] KEELC 1440 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1440/eng@2018-09-24

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