Ruth Chelangat Sirma v Samwel Sang & 5 others [2018] KEELC 2298 (KLR)
The bottom line
#The Kericho Land Court refused to fully block land defendants but froze the status quo, stopping anyone from selling or transferring the disputed parcel.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case with a probability of success
The plaintiff established ownership of the suit property through a certificate of official search and confirmation of grant, but whether the acts of trespass were committed by the respondents is doubtful and can only be determined at trial
The applicant annexed a certificate of official search showing she is the registered owner of Kericho/Kipchimchim/4165, plus a confirmation of grant and photographs. However, the replying affidavits of the 1st and 4th respondents cast doubt on whether the respondents committed the alleged trespass. Those are evidentiary issues for the full hearing, so an injunction could not be granted outright.
Whether the subject matter should be preserved pending trial
Yes - the court invoked the doctrine of lis pendens and the lower-risk-of-injustice principle to direct maintenance of the status quo rather than grant a restraining order
Because the trespass question could only be resolved at trial, the court preserved the suit property under the doctrine of lis pendens as recognized in section 107 of the Land Registration Act, guided also by the Films Rover International principle of taking the course carrying the lower risk of injustice, which accords with the balance of convenience.
Legal principles established
#- An applicant for an interlocutory injunction must establish a prima facie case with probability of success, irreparable injury not compensable by damages, and if in doubt the court decides on a balance of convenience (Giella v Cassman Brown)
- A court faced with an interlocutory application for injunction does not make final findings but weighs the relative strength of the parties' cases
- The doctrine of lis pendens prohibits a party from giving third parties rights to property in dispute pending litigation, overriding section 23 of the Registered Land Act
- The doctrine of lis pendens is applicable pursuant to the provisions of section 107 of the Land Registration Act
Court orders
#- 1.That the status quo be maintained pending the hearing and determination of the suit - parties to continue using/occupying the respective properties they have been occupying, but none shall sell, transfer or part with possession of the suit land pending 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.That the costs of the application shall be in the cause
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court to grant interlocutory injunctive relief; doctrine of lis pendens under section 52 of the Transfer of Property Act and section 107 of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ruth Chelangat Sirma v Samwel Sang & 5 others [2018] KEELC 2298 (KLR)", Case Analysis (2018). Not stated in the judgment (Kericho ELC; suit concerning L.R No. Kericho/Kipchimchim/4165). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2298/eng@2018-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.