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ELCDismissedNot stated in judgment (Notice of Motion dated 15th December 2017)· [2018] KEELC 2952 (KLR)

Hosea Barmo Chemweno v Samwel Kamau Kamara & 3 others [2018] KEELC 2952 (KLR)

Environment and Land Court (as inferred from land dispute; judgment does not name the court)
31 May 2018
MOM.A ODENY
1,330 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 buyer lost his injunction bid because he produced no documents proving ownership — paper evidence matters more than years of possession.

What this practically means

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Executive summary

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This ruling by M.A Odeny, J at Eldoret determined a Notice of Motion dated 15th December 2017 in which the plaintiff/applicant sought a temporary injunction restraining the 1st defendant from interfering with his use, possession and occupation of L.R No. Uasin Gishu/Kahungura Settlement Scheme/321 measuring about 5.0 acres. The plaintiff claimed to have acquired the land from the late Monica Mugure Kariuki, said to be the first allottee, and to have taken possession in 2004. The defendants filed replying affidavits; the 1st defendant asserted he was the registered owner having been registered by the 2nd defendant after due process, and the 2nd and 4th defendants submitted that the parcel had been properly allocated and title issued to the 1st defendant. The parties canvassed the application by written submissions, but the plaintiff failed to file submissions, so the court relied on the application, the supporting affidavit and the defendants' submissions. Applying the Giella v Cassman Brown principles, the court found nothing demonstrating that the plaintiff had any beneficial interest or ownership of the suit land; the plaintiff did not state his relationship with the deceased Monica Mugure Kariuki and produced no documentation or proof of locus standi to sue on her behalf. The court also found no irreparable loss not compensable by damages, and held the balance of convenience favoured the 1st defendant as registered proprietor. The application was dismissed with costs to the defendants.

Key legal issues

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01

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

Holding

No prima facie case established; no documentation of ownership or beneficial interest, and no proof of locus standi to claim on behalf of the deceased Monica Mugure Kariuki

Reasoning

The court examined the grounds of the application and the supporting affidavit and found nothing demonstrating the plaintiff's beneficial interest or ownership. The plaintiff did not state his relationship with the deceased alleged first allottee nor produce any documentation of the claim for ownership. Without establishing an apparent right capable of being infringed, the first Giella principle failed and the application could not succeed.

p. 3
02

Whether the plaintiff would suffer irreparable loss not compensable by damages

Holding

No irreparable loss established; damages would be an adequate remedy

Reasoning

The court held that the plaintiff did not establish that he would suffer irreparable loss incapable of compensation by damages if the injunction were not granted. This second Giella principle also failed. Further, the balance of convenience lay with the 1st defendant, the registered proprietor holding a title deed, as reinforced by the 2nd and 4th defendants.

p. 3

Legal principles established

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  • The plaintiff bears the burden of demonstrating a prima facie case, irreparable injury not compensable by damages, and where in doubt the balance of convenience, per Giella v Cassman Brown

Court orders

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  1. 1.The plaintiff's application for a temporary injunction is dismissed with costs to the defendants

Authorities

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Cases cited (4)

  • Giella v Cassman Brown
    null
  • 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
Not stated in the judgment

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, "Hosea Barmo Chemweno v Samwel Kamau Kamara & 3 others [2018] KEELC 2952 (KLR)", Case Analysis (2018). Not stated in judgment (Notice of Motion dated 15th December 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2952/eng@2018-05-31

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