Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (Notice of Motion dated 15th December 2017)· [2018] KEELC 2821 (KLR)

Hosea Barmo Chemweno v Samwel Kamau Kamara & 3 others [2018] KEELC 2821 (KLR)

Environment and Land Court
31 May 2018
1,334 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan land buyer lost an injunction because he had no title documents proving ownership against a registered proprietor.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Eldoret (M. A. Odeny, J) on a Notice of Motion dated 15th December 2017 by the plaintiff seeking a temporary injunction restraining the 1st defendant from interfering with the plaintiff's use, possession and occupation of L.R No. UASIN GISHU/KAHUNGURA SETTLEMENT SCHEME/321 measuring 5.0 acres. The plaintiff deponed that he acquired the land from Monica Mugure Kariuki, allegedly the first allottee and now deceased, and took possession in 2004, but produced no documentation and did not explain his relationship to her or how he came into possession. The defendants, canvassing the application by written submissions (the plaintiff failing to file his as ordered), submitted that the plaintiff had not established a prima facie case with a probability of success under the Giella v Cassman Brown principles, had no locus standi to sue on behalf of a deceased person, had shown no irreparable loss, and that the 1st defendant was the duly registered proprietor following due process. The court agreed: it found nothing demonstrating even prima facie any beneficial interest or ownership by the plaintiff, no proof of locus standi to sue on behalf of the deceased Monica, and no irreparable loss not compensable by damages. The balance of convenience lay with the 1st defendant as registered proprietor per the annexed title deed. The application for a temporary injunction was dismissed with costs to the defendants.

Key legal issues

#
01

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

Holding

No prima facie case was established; the plaintiff produced no documentation of ownership or any explanation of his relationship with the alleged allottee, Monica Mugure Kariuki, a deceased person

Reasoning

The plaintiff relied only on an averment that he acquired the land from Monica Mugure Kariuki, now deceased, without any title, letter of allotment or other documentation, and without explaining how he came into possession or his standing to sue on behalf of a deceased person. The 1st defendant's title deed as registered proprietor was uncontroverted. The court therefore found nothing demonstrating even prima facie a beneficial interest or ownership in the plaintiff.

p. 2
02

Whether the plaintiff would suffer irreparable loss and where the balance of convenience lies

Holding

No irreparable loss was demonstrated; the balance of convenience lies with the 1st defendant as registered proprietor

Reasoning

The court noted that the plaintiff did not establish irreparable loss incapable of compensation by damages. Since the 1st defendant held a title deed as registered proprietor, reinforced by the 2nd and 4th defendants, the balance of convenience favoured the registered owner; the court cannot restrain an owner of land.

p. 2

Legal principles established

#
  • An applicant for a temporary injunction must establish a prima facie case with a probability of success, irreparable injury not adequately compensable by damages, and, if in doubt, the balance of convenience (Giella v Casman Brown principles)
  • A prima facie case is one in which, on the material presented, the court concludes there exists a right apparently infringed by the opposite party so as to call for an explanation or rebuttal (Mrao v First American Bank, as cited)

Court orders

#
  1. 1.The plaintiff's application for a temporary injunction is dismissed
  2. 2.Costs of the application to the defendants

Authorities

#

Cases cited (4)

  • Giella v Cassman Brown (1973)
  • Panari Enterprises Limited V Lijoodi & 2 others
    (2014) eKLR
  • MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    (2003) KLR 125
  • Kenya Commercial Finance Co. Ltd V. Afraha Education Society
    [2001] Vol. 1 EA 86
Jurisdiction invoked
Original civil jurisdiction over land disputes (suit concerning L.R No. UASIN GISHU/KAHUNGURA SETTLEMENT SCHEME/321); no specific provision cited

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Hosea Barmo Chemweno v Samwel Kamau Kamara & 3 others [2018] KEELC 2821 (KLR)", Case Analysis (2018). Not stated in judgment (Notice of Motion dated 15th December 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2821/eng@2018-05-31

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