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ELCDismissed· [2018] KEELC 2388 (KLR)

Johnson Wyclife Ambani & another v Henry Lubanga Mwimali & another [2018] KEELC 2388 (KLR)

Environment and Land Court (High Court sitting at Kakamega)
12 July 2018
760 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 refused to stop family members from using disputed land because the same dispute was already before another court.

What this practically means

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Executive summary

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The plaintiff/applicants moved the court by notice of motion dated 26th September 2016 under sections 3A and 63(e) of the Civil Procedure Act and Orders 40 and 50 rule 1 of the Civil Procedure Rules, seeking interim injunctions restraining the defendants, their family, agents and servants from trespassing on, encroaching on or cultivating land parcels E. Wanga/Malaha/1163, 1164 and 1165, plus costs. The applicants claimed to be the sole proprietors of the parcels and alleged that the defendants had entered without any colour of right and were cultivating and threatening to construct structures thereon, occasioning irreparable loss. The defendants, who are siblings of the applicants, responded that the suit land derives from parcel E. Wanga/Malaha/167, subdivided in succession cause No. 413 of 1995 into six parcels apportioned to all beneficiaries, including the parties; that objection proceedings by the respondents and an eviction application by the applicants were both dismissed by a ruling dated 11th May 2017; and that a similar matter was pending before the High Court, rendering the application res judicata, misconceived and unmerited. Applying Giella v Cassman Brown and the definition of a prima facie case in Mrao Ltd v First American Bank of Kenya Ltd, the court held that it cannot issue orders where another court is dealing with the same matters, found the application lacking in merit, and dismissed it with costs. Judgment was delivered at Kakamega on 12th July 2018 by N.A. Matheka, Judge.

Key legal issues

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01

Whether the applicants met the Giella v Cassman Brown threshold for an interlocutory injunction

Holding

The application failed; no interlocutory injunction issued

Reasoning

Although the applicants claimed sole proprietorship of the suit parcels, the defendants showed the land derives from a subdivision of parcel E. Wanga/Malaha/167 in succession cause No. 413 of 1995, in which objection proceedings by the respondents and an eviction application by the applicants were both dismissed. A similar matter was also pending before the High Court. The court therefore found the application lacked merit and res judicata.

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02

Whether the application is res judicata

Holding

Yes; the court declined to issue orders where a similar matter was pending before the High Court over the same land and parties

Reasoning

The defendants argued that the suit land is subject to succession cause No. 413 of 1995, in which the applicants' eviction application and the respondents' objection proceedings were dismissed on 11th May 2017, and that a similar matter touching the same land and parties was before the High Court. The court accepted that it cannot issue orders where another court is dealing with the same matters.

p. 2

Legal principles established

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  • The conditions for granting an interlocutory injunction are: a prima facie case with probability of success; irreparable injury not adequately compensable by damages; and, if in doubt, the balance of convenience
  • A prima facie case is more than an arguable case; the evidence must show an infringement of a right and the probability of success at trial
  • A court cannot issue orders where another court is already dealing with the same matters between the same parties (res judicata)

Court orders

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  1. 1.The application dated 26th September 2016 is dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 63(e)
  • Civil Procedure RulesOrder 40
  • Civil Procedure RulesOrder 50 rule 1

Cases cited (2)

  • Giella vs. Cassman Brown
    (1973) EA 358
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 others
    (2003)
Jurisdiction invoked
Sections 3A and 63(e) of the Civil Procedure Act and Order 40 and Order 50 rule 1 of the Civil Procedure Rules

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, "Johnson Wyclife Ambani & another v Henry Lubanga Mwimali & another [2018] KEELC 2388 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2388/eng@2018-07-12

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