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ELCOther· [2018] KEELC 3037 (KLR)

Julius Kiprono Serem v Fred Siele & 5 others [2018] KEELC 3037 (KLR)

Environment and Land Court
30 May 2018
JOJ. M. Onyango
1,048 words in judgment
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The bottom line

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A Kenyan land court refused to hand one side control of a disputed plot, instead freezing all development on it until the ownership case is fully heard.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 9 April 2018 brought by the plaintiff under Order 40 Rules 1 and 4 of the Civil Procedure Rules and sections 3 and 3A of the Civil Procedure Act, seeking an interlocutory injunction restraining the defendants from building, disposing of, alienating or wasting Unserved Commercial Plot No. 75 Ainamoi Market, and for enforcement of the orders by the OCS Nyagacho Police Station. The plaintiff deponed that he is the registered owner of the plot on the strength of an allotment letter from the County Council of Kipsigis, and that on 28 March 2018 the 1st, 2nd and 5th defendants trespassed, destroyed his property and began constructing structures. The 2nd defendant, Paul Koskei, opposed the application, asserting that the plot referenced was different from the one in respect of which the order was sought, that plots 75 and 76 are public utility plots in which the plaintiff cannot claim ownership, and that no structures had been erected. The court framed the sole issue as whether the plaintiff was entitled to injunctive relief, and applied the Giella v Cassman Brown conditions together with the Films Rover lower-risk-of-injustice principle as adopted in Amir Suleiman v Amboseli Resort, and Mrao v First American Bank on the definition of a prima facie case. Finding that the dispute over whether the allotment letter related to a public utility plot could only be resolved at a full hearing, the court declined the injunction, directed that the status quo be maintained - meaning no party to carry out developments on the suit property pending determination of the suit - 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

Although the plaintiff attached an allotment letter appearing to evidence ownership, the defendants' allegation that the allotment was for a public utility plot could only be resolved at a full hearing, so no prima facie case was decisively established.

Reasoning

The court weighed the plaintiff's allotment letter from the County Council of Kipsigis against the 2nd defendant's sworn assertion that plots 75 and 76 are public utility plots. Since this dispute over the validity of the allotment goes to ownership, the judge held it could not be resolved on the interlocutory papers and was a matter for trial after a full hearing.

p. 2
02

Whether injunctive relief should issue on the balance of convenience

Holding

The court declined the injunction and ordered maintenance of the status quo, defined as no party carrying out developments on the suit property pending trial.

Reasoning

Applying the Films Rover principle as adopted in Amir Suleiman v Amboseli Resort, the judge chose the course carrying the lower risk of injustice. Rather than restraining the defendants alone, the court preserved the position of both parties by freezing all developments on the property until the suit is heard and determined.

p. 2

Legal principles established

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  • The conditions for granting an interlocutory injunction are the Giella v Cassman Brown criteria: prima facie case, irreparable injury not compensable by damages, and balance of convenience where the court is in doubt
  • In an interlocutory injunction application the court does not make final findings of contested fact or law but weighs the relative strength of the parties' cases
  • Where the court is in doubt it should take the course that carries the lower risk of injustice if it turns out to have been wrong

Court orders

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  1. 1.The application for injunction in the terms sought is declined
  2. 2.Status quo to be maintained pending the hearing and determination of the suit, meaning none of the parties shall carry on any developments on the suit property until the case is heard and determined
  3. 3.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 and 4
  • Civil Procedure Actsections 3 and 3A

Cases cited (5)

  • 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
Jurisdiction invoked
Order 40 Rules 1 and 4 of the Civil Procedure Rules; sections 3 and 3A of the Civil Procedure Act

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, "Julius Kiprono Serem v Fred Siele & 5 others [2018] KEELC 3037 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3037/eng@2018-05-30

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