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ELCDismissedNot stated in judgment· [2018] KEELC 2360 (KLR)

Bakari Makokha suing for and on behalf of Estate of Issa Matere Munyanya v Sylvester Odhiambo Wabuyabo & another [2018] KEELC 2360 (KLR)

Environment and Land Court
10 July 2018
676 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kakamega dismissed a landowner's bid to stop a neighbour ploughing disputed land, because the true registered owner was never joined to the case.

What this practically means

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Executive summary

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The applicant moved the court by notice of motion dated 19th February 2018 seeking an interlocutory injunction restraining the 1st respondent, his agents, workers and family members from tilling, ploughing, wasting or dealing with L.P No. N/W/Mayoni/845 pending hearing and determination of the suit, plus costs. The application was grounded on the contention that the 1st respondent had admitted on 18th September 2017 that he was not the proprietor of the parcel, that the applicant's biological parents were buried on the land, and that the 1st respondent was preparing to plough it, diminishing its value, despite a pending application by the 2nd respondent for re-survey. It was further alleged that the 1st respondent had registered their late father as proprietor after his death intestate. The 1st respondent denied the allegations, asserting the parcel is registered in the name of his late father Nicholas Wabuyabo, a non-party, and that no succession proceedings had been taken in respect of it, denying the applicant's locus standi. Applying the Giella v Cassman Brown conditions as elaborated in Mrao Ltd v First American Bank of Kenya Ltd, the court found as a fact that the suit parcel belongs to Nicholas Wabuyabo, who is not a party to the suit. The applicant therefore failed to demonstrate a prima facie case with a probability of success, nor irreparable injury not compensable by damages. The application was dismissed with costs on 10th July 2018.

Key legal issues

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01

Prima facie case

Holding

The applicant failed to establish a prima facie case because the registered proprietor of the suit land is a third party not joined to the suit

Reasoning

Relying on Mrao Ltd v First American Bank of Kenya Ltd, a prima facie case requires evidence of an apparently infringed right and probability of success, being more than an arguable case. The court found as a fact that the parcel belongs to Nicholas Wabuyabo, a non-party, and that no succession proceedings had been done in respect of it, so the applicant's claimed right was not apparent on the material presented.

p. 2
02

Irreparable injury and balance of convenience

Holding

Neither irreparable injury nor the balance of convenience was demonstrated in the applicant's favour

Reasoning

The second and third Giella v Cassman Brown conditions were not satisfied: the applicant did not show that damages would be an inadequate remedy if the land were ploughed pending determination, nor did the court reach the balance-of-convenience stage given the failure on the first condition. The application was therefore without merit and was dismissed with costs.

p. 2

Legal principles established

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  • The conditions for granting an interlocutory injunction are: prima facie case with probability of success, irreparable injury not compensable by damages, and, if in doubt, balance of convenience

Court orders

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  1. 1.The notice of motion dated 19th February 2018 is dismissed
  2. 2.Costs of the application to the 1st respondent

Authorities

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Cases cited (2)

  • Giella vs. Cassman Brown
    (1973) EA 358
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 others
    (2003)
Jurisdiction invoked
Inherent jurisdiction of the court to grant interlocutory injunctions (application for injunctive relief; no specific provision cited)

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, "Bakari Makokha suing for and on behalf of Estate of Issa Matere Munyanya v Sylvester Odhiambo Wabuyabo & another [2018] KEELC 2360 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2360/eng@2018-07-10

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