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ELCOtherNot stated in the judgment (Kericho ELC; suit concerning L.R No. Kericho/Kipchimchim/4165)· [2018] KEELC 2298 (KLR)

Ruth Chelangat Sirma v Samwel Sang & 5 others [2018] KEELC 2298 (KLR)

Environment and Land Court
12 July 2018
1,567 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff, Ruth Chelangat Sirma, administrator of the estate of the late Kibilat A. Barkaliet, moved the Environment and Land Court at Kericho by notice of motion dated 22nd March 2018 seeking interlocutory restraining orders against the defendants from sub-dividing, selling, encroaching on, cultivating or otherwise interfering with L.R No. Kericho/Kipchimchim/4165, registered in her name following confirmation of grant in Kericho HC Succession Cause No. 15 of 2016. She alleged that in 2014 the defendants trespassed onto the property and constructed a permanent house which they rented out. The 1st defendant denied trespass, asserting he occupies Kericho/Kipchimchim/5674 carved out of a distinct parcel, while the 4th defendant claimed he leased the premises in 2014 from a deceased purchaser of a portion of the land. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, Onyango J found the plaintiff had established ownership of the suit property but that whether the respondents committed the trespass was doubtful and could only be determined at trial. Invoking the doctrine of lis pendens under section 52 of the Transfer of Property Act and section 107 of the Land Registration Act, and the Films Rover International 'lower risk of injustice' principle, the court declined to grant the restraining orders sought and instead directed that the status quo be maintained - parties to continue occupying their respective properties but none to sell, transfer or part with possession of the suit land pending determination of the main suit. The parties were ordered to comply with Order 11 of the Civil Procedure Act within 30 days, and costs of the application were made costs in the cause. The ruling was delivered at Kericho on 12th July 2018.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success

Holding

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

Reasoning

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.

p. 2
02

Whether the subject matter should be preserved pending trial

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 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. 3.That the costs of the application shall be in the cause

Authorities

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Legislation

  • Transfer of Property Act (TPA)section 52
  • Registered land Act (RTA)section 23
  • Land Registration Actsection 107
  • Civil Procedure ActOrder 11

Cases cited (7)

  • Giella V Cassman Brown & Company Ltd
    1973 EA 358
  • Amir Suleiman V Amboseli Resort Limited
    (2004) eKLR
  • Films Rover International
    1986 3 All ER 772
  • Mrao V First American Bank of Kenya Limited
    (2003) eKLR
  • Mbuthia Vs Jimba Credit Corporation Ltd
    (1988) KLR1
  • Mawji vs US International University & another
    [1976] KLR 185
  • Naftali Ruthi Kinyua V Patrick Thuita Gachure and Another
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

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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, "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.