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ELCPartially AllowedNot stated in the judgment· [2018] KEELC 2491 (KLR)

Joel Kipkurui arap Koech v Alice Wambui Magandu & 3 others [2018] KEELC 2491 (KLR)

Environment and Land Court of Kenya
9 July 2018
CYC. YANO
2,251 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court froze all dealings with a disputed Shimoni plot, protecting a 1991 allottee until a trial decides who truly owns it.

What this practically means

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Executive summary

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The Plaintiff, Joel Kipkurui Arap Koech, moved the Environment and Land Court at Mombasa by Notice of Motion dated 20th June 2017 seeking a temporary prohibitory injunction restraining the Defendants from dealing with land parcel Kwale/Shimoni/168, and an order compelling the 2nd and 3rd Defendants to furnish certified copies of the register and parcel file. He claimed he was allotted the property in 1991, paid the requisite charges, obtained a certificate of outright purchase, and executed transfer documents in 2016, but the 2nd and 3rd Defendants fraudulently registered the 1st Defendant as proprietor instead. The 1st Defendant opposed, asserting she was allocated the land in 2004, was the first registered owner, charged it to the Agricultural Finance Corporation, and that her title was protected under Article 40 of the Constitution. The 2nd, 3rd and 4th Defendants did not oppose. Counsel agreed to dispose of the application by written and brief oral submissions. Applying Giella v Cassman Brown, and drawing on Mrao Ltd v First American Bank and Suleiman v Amboseli Resort Ltd, the court held that the rival claims of ownership could only be resolved at trial, but found that the Plaintiff had established a prima facie case with probability of success, would suffer damage not quantifiable in damages if the land were alienated, and that the balance of convenience favoured maintaining the status quo. The court granted the temporary injunction in terms of prayer 3 and ordered the costs of the application to be in the cause. Ruling delivered at Mombasa on 9th July 2018 by C. Yano, Judge.

Key legal issues

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01

Prima facie case with probability of success

Holding

The Plaintiff established a prima facie case against the Defendants

Reasoning

The Plaintiff exhibited a 1991 letter of offer, a certificate of outright purchase and executed transfer documents prepared by the Ministry of Lands. Relying on Mrao Ltd v First American Bank, the court found the material showed an apparent infringement of a right capable of calling for explanation, despite the 1st Defendant's rival claim of 2004 allocation and first registration.

p. 4
02

Irreparable damage

Holding

Alienation of the suit land would cause loss not quantifiable in damages

Reasoning

The court reasoned that should the suit land be alienated pending trial, the Plaintiff would lose what he regards as his land, a loss which may not be quantified in damages, satisfying the second Giella condition.

p. 4
03

Balance of convenience

Holding

Balance of convenience tilts in favour of the Plaintiff to safeguard the subject matter

Reasoning

The court held that preserving the subject matter pending hearing and determination favoured the Plaintiff, and that maintaining the status quo served the overriding objective of doing justice between rival claimants.

p. 4

Legal principles established

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  • An applicant for an interlocutory injunction must establish a prima facie case with probability of success, irreparable damage, and failing which the balance of convenience is considered (Giella v Cassman Brown)
  • The court is not rigidly bound by the three Giella principles; it may consider the circumstances of the case generally and the overriding objective, opting for the lower risk of injustice
  • Where rival claimants each assert allocation and title, and ownership can only be ascertained at trial, it is fair to maintain the status quo pending hearing

Court orders

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  1. 1.Temporary prohibitory injunction granted in terms of prayer 3 of the Notice of Motion dated 20th June 2017, restraining the Defendants from selling, transferring, transmitting, charging, issuing titles or making entries in respect of Kwale/Shimoni/168 and from interfering with the Plaintiff's title and quiet possession
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 40

Cases cited (4)

  • Giella –v- Cassman Brown & Company Ltd
    (1973) EA 358
  • Mrao Ltd –v- First American Bank of Kenya Ltd
    (2003) eKLR
  • Suleiman – v- Amboseli Resort Ltd
    (2004) KLR 589
  • Films Rover International
    (1986) 3 ALL ER 772
Jurisdiction invoked
Original jurisdiction over land disputes; application for interlocutory injunction under civil procedure (specific statutory basis not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (20)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joel Kipkurui arap Koech v Alice Wambui Magandu & 3 others [2018] KEELC 2491 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2491/eng@2018-07-09

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