David Kibet Tuei (suing as the administrator of the estate of Kenduiywa Kiprono Chumo v Johanna Kipkurui Marsoi & Attorney General [2018] KEELC 2296 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success entitling him to a temporary injunction
No; the certificate of official search and green card showed the Respondent as registered owner and the Plaintiff had not established ownership, though his claim through his late father raised triable issues
The Plaintiff's documents showed the Respondent as registered owner. The Plaintiff staked a claim through his late father, who apparently was entitled to land registered in the Respondent's late father's name - a trust claim that could only be determined at full hearing. The court therefore declined the injunction but preserved the subject matter under lis pendens.
Whether the subject matter of the suit should be preserved pending determination of the trust claim
Yes; under the doctrine of lis pendens (section 107, Land Registration Act) and the lower-risk-of-injustice principle, the status quo was to be maintained
The court found the trust issue required preservation of the suit property. Relying on Mawji and Naftali Ruthi Kinyua, it held lis pendens applicable, and guided by Films Rover International via Amboseli Resort, adopted the course carrying the lower risk of injustice, which accords with the balance of convenience.
Legal principles established
#- Conditions for granting an interlocutory injunction: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt
- A prima facie case is one where a right appears to have been infringed calling for an explanation or rebuttal from the opposite party
- In interlocutory injunction applications the court does not make final findings but weighs the relative strength of the parties' cases
- The doctrine of lis pendens, applicable under section 107 of the Land Registration Act, prohibits parties from granting pending-litigation rights over disputed property so as to prejudice the other party
Court orders
#- 1.That the status quo be maintained pending the hearing and determination of the suit - the Respondent shall continue to use and occupy L.R No KERICHO/CHESOEN/2887 but shall not sell, transfer, charge or part with possession of the suit land pending the hearing and determination of the main suit
- 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.The costs of the application shall be in the cause
- Jurisdiction invoked
- Not expressly stated; discretionary interlocutory jurisdiction over land disputes (suit concerning L.R No. KERICHO/CHESOEN/2887)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kibet Tuei (suing as the administrator of the estate of Kenduiywa Kiprono Chumo v Johanna Kipkurui Marsoi & Attorney General [2018] KEELC 2296 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2296/eng@2018-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.