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ELCDismissedNot stated in the judgment· [2018] KEELC 1956 (KLR)

Paul Kimutai Rotich v Robert Kipkemoi Korir & another [2018] KEELC 1956 (KLR)

Environment and Land Court
30 August 2018
JOJ.M ONYANGO
343 words in judgment
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The bottom line

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The court refused to block dealings over Kericho land because the applicant was not the registered owner, and fraud claims can wait for full trial.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Kericho dealt with an application dated 31st May 2018 by the Applicant (also described as the Defendant) seeking a temporary injunction to restrain the Plaintiff/Respondent, by themselves or through agents, servants and employees, from using, occupying, selling, disposing of, cultivating, entering upon or otherwise interfering with land parcels L.R. KERICHO/KIPTUGUMO/1121 and KERICHO/KIPTUGUMO/1175. The application was supported by the Applicant's affidavit sworn on 31st May 2018 and opposed by a replying affidavit dated 12th July 2018. The court framed a single issue: whether the Applicant was entitled to an order of temporary injunction. Applying the Giella v Cassman Brown & Company Ltd test, J.M Onyango J held that the Applicant had not established a prima facie case with a probability of success because certificates of official search showed the suit land registered in the name of the Plaintiff/Respondent. The court held that allegations of fraud raised against the Plaintiff could not be determined at the interlocutory stage. Having failed the first condition of the test, the court declined to consider the remaining conditions. The application was dismissed with costs in the cause. The order was dated, signed and delivered at Kericho on 30th August 2018.

Key legal issues

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01

Whether the Applicant was entitled to a temporary injunction restraining the Plaintiff/Respondent from dealing with L.R. KERICHO/KIPTUGUMO/1121 and 1175

Holding

The application for temporary injunction was dismissed because the Applicant failed to establish a prima facie case with a probability of success

Reasoning

The court applied the Giella v Cassman Brown test for interlocutory injunctions. On the certificates of official search, the suit land is registered in the name of the Plaintiff/Respondent, not the Applicant. Although allegations of fraud were raised against the Plaintiff, the court held that fraud cannot be determined at the interlocutory stage. Having failed the first Giella condition, the court declined to consider the remaining conditions and dismissed the application with costs in the cause.

p. 1

Legal principles established

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  • A party seeking an interlocutory injunction must satisfy the conditions in Giella v Cassman Brown & Co Ltd, beginning with a prima facie case with a probability of success; failure at the first stage renders consideration of the remaining tests unnecessary

Court orders

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  1. 1.The application dated 31st May 2018 seeking a temporary injunction is dismissed
  2. 2.The costs of the Application shall be in the cause

Authorities

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Cases cited (1)

  • Giella V Cassman Brown & Company Ltd
    1973 EA 358
Jurisdiction invoked
Not stated in the judgment

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, "Paul Kimutai Rotich v Robert Kipkemoi Korir & another [2018] KEELC 1956 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1956/eng@2018-08-30

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