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ELCPartially AllowedKericho ELC (suit particulars not stated in the judgment excerpt; application dated 13th March 2018)· [2018] KEELC 2917 (KLR)

Grace Chemutai Koech v Franices Kiplangat Chebiror & 2 others [2018] KEELC 2917 (KLR)

Environment and Land Court
13 June 2018
JOJ.M. Onyango
1,755 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kericho court ordered neither side to use disputed land while the case continues, rejecting a one-sided ban and showing courts often freeze both parties in land fights.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kericho (J.M. Onyango, J) on the plaintiff's Notice of Motion dated 13th March 2018, brought under Order 40 Rules 1, 2(1), 3(1) and 9, Order 51 Rule 1 of the Civil Procedure Rules and Sections 3A and 63 of the Civil Procedure Act, seeking a temporary injunction restraining the defendants from encroaching on, cultivating or erecting structures on land parcel KERICHO/KAPSUSER/3325 pending the hearing of the suit. The plaintiff deponed that she purchased the 0.40 hectare property from the 1st and 2nd defendants in 1999, took possession and developed it, but that in February 2018 the 3rd defendant (who had acquired title in January 2018 after a September 2017 purchase from Wilson Rotich) trespassed, destroyed crops and attempted to evict her, at one point having her locked up at Kapsoit Police Station. She also sought a declaration of ownership by adverse possession. The 3rd respondent countered that he was the registered owner in occupation since September 2017 and that it was the plaintiff who trespassed. Applying Giella v Cassman Brown, Mrao, Mbuthia v Jimba Credit, Mawji, and the Films Rover 'lower risk of injustice' principle as adopted in Amboseli Resort, the court held the plaintiff had established a prima facie case with probability of success and stood to suffer loss given the volatile, potentially explosive situation on the ground, requiring preservation of the subject matter under the doctrine of lis pendens. The court directed maintenance of the status quo, barring both parties from using or occupying the land, with supervised removal of belongings or harvesting of crops through the OCS Kapsoit, directed compliance with Order 11 within 30 days, and ordered costs in the cause.

Key legal issues

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01

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

Holding

Yes - the plaintiff appeared to have a right apparently infringed, requiring the respondents to explain why the 3rd respondent's title was allegedly unlawful

Reasoning

Both parties claimed to have purchased the suit property from the alleged owners, each producing sale agreements; the 3rd respondent held a title deed issued on 31st January 2018 while the plaintiff claimed occupation since 1999. Applying the Mrao definition, the court found the plaintiff had an apparently infringed right that would require the 3rd respondent to rebut her allegation that the title was unlawful, though ownership would be conclusively determined at trial.

p. 3
02

Whether the plaintiff would suffer irreparable loss not compensable by damages

Holding

Yes - the situation on the ground was volatile and potentially explosive, including alleged burning of the plaintiff's house

Reasoning

The court noted threats of violence, the alleged burning of the plaintiff's house, and that the dispute was emotive and potentially explosive. It reasoned that an injunction is an equitable remedy to safeguard the subject matter from being wasted, damaged or alienated, and preservation was needed under the doctrine of lis pendens to enable determination of the title issue.

p. 3

Legal principles established

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  • The three Giella v Cassman Brown conditions govern the grant of temporary injunctions: prima facie case, irreparable injury, and balance of convenience
  • At interlocutory stage the court does not make final findings of contested fact but weighs the relative strength of the parties' cases
  • A prima facie case is one where a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party
  • The doctrine of lis pendens, applicable under section 107 of the Land Registration Act, preserves the subject matter of pending litigation

Court orders

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  1. 1.That the status quo be maintained pending the hearing and determination of the suit, meaning neither the plaintiff nor the defendant shall use or occupy the suit property; removal of belongings or harvesting of crops to be done under supervision of the OCS Kapsoit Police Station
  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

  • Civil Procedure ActSections 3A, 63
  • Civil Procedure RulesOrder 40 Rules 1, 2(1), 3(1), 9; Order 51 Rule 1; Order 11
  • Transfer of Property Act (TPA)Section 52
  • Registration of Titles Act (RTA)Section 23
  • Land Registration ActSection 107

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) KLR 1
  • Mawji vs US International University & another
    [1976] KLR 185
  • Naftali Ruthi Kinyua V Patrick Thuita Gachure and Another
Jurisdiction invoked
Order 40 Rules 1, 2(1), 3(1) and 9, Order 51 Rule 1 of the Civil Procedure Rules and Sections 3A and 63 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Grace Chemutai Koech v Franices Kiplangat Chebiror & 2 others [2018] KEELC 2917 (KLR)", Case Analysis (2018). Kericho ELC (suit particulars not stated in the judgment excerpt; application dated 13th March 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2917/eng@2018-06-13

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