Charles Cheruiyot Mosonik v Geoffrey Ng’eno [2018] KEELC 2199 (KLR)
The bottom line
#The Kericho Environment and Land Court preserved a disputed land parcel by ordering both parties to keep the status quo instead of granting a full injunction.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case with a probability of success
The applicant demonstrated a prima facie case, his right as registered owner of KERICHO/KAPTEBENGWET/463 having apparently been infringed by the respondent
Applying the definition in Mrao v First American Bank of Kenya Ltd, the court found that the plaintiff, as registered proprietor, appeared to have a right apparently infringed by the respondent. However, the court noted the real dispute was a boundary dispute between the parties, with prior attempts at resolution through the Land Registrar having failed, an issue to be determined at trial after full evidence.
Whether the applicant would suffer irreparable injury not compensable in damages
Although the applicant stood to lose peaceful and quiet possession, there was no imminent danger of sale or alienation of the suit land given the seven-year duration of the complained-of acts
The court accepted that the applicant would suffer loss if no orders were made, but noted the acts had persisted for about seven years, indicating no imminent danger of sale or alienation under Order 40 of the Civil Procedure Rules. This tempered the relief granted from a full injunction to maintenance of the status quo.
Whether the subject matter should be preserved pending determination of the trespass and boundary dispute
Yes; preservation was warranted under the doctrine of lis pendens, hence the status quo order
Relying on Mawji v US International University and Naftali Ruthi Kinyua v Patrick Thuita Gachure, the court held that lis pendens, under section 107 of the Land Registration Act, prohibits parties from parting with rights over the disputed property pending litigation. Preservation served the lower-risk-of-injustice principle from Films Rover International and protected the suit property pending trial.
Legal principles established
#- At interlocutory stage the court does not make final findings but weighs the relative strength of the parties' cases
- The doctrine of lis pendens, applicable pursuant to section 107 of the Land Registration Act, prohibits a party from giving pending-litigation rights over disputed property so as to prejudice the other party
- A fundamental principle on interlocutory injunctions is that the court should take whichever course appears to carry the lower risk of injustice
Court orders
#- 1.That the status quo be maintained pending the hearing and determination of the suit, with the applicant and the defendant to continue to use and occupy their respective parcels of land but not to sell, transfer, mortgage or otherwise part with possession of the suit property
- 2.That the parties comply with Order 11 of the Civil Procedure Act within the next 30 days to expedite the hearing and disposal of the suit
- 3.That the costs of the application shall be in the cause
- Jurisdiction invoked
- Original jurisdiction under Article 162(2)(b) of the Constitution and the Environment and Land Court Act; interim relief sought under Order 40 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Cheruiyot Mosonik v Geoffrey Ng’eno [2018] KEELC 2199 (KLR)", Case Analysis (2018). Kericho ELC Civil Case (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2199/eng@2018-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.