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ELCDismissedNot stated in the extract provided· [2018] KEELC 3053 (KLR)

Hezekiah Mavisi Ondego & 8 others v County Government of Vihiga & another [2018] KEELC 3053 (KLR)

Environment and Land Court (High Court), Kakamega
30 May 2018
NMN.A. Matheka
1,468 words in judgment
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The bottom line

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Six Kakamega landowners lost their bid to stop eviction because the court found they hid a past land exchange and failed to prove a strong case.

What this practically means

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Executive summary

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The petitioners, registered owners of six land parcels being subdivisions of the closed parcel South Maragoli/Bugonda/2097, moved the court by Notice of Motion dated 17th March 2017 under rules 21 and 22 of the Constitution (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, seeking conservatory orders and interim injunction restraining the respondents from trespassing on, threatening eviction from, or demolishing structures and fences on their land. They argued that the notice to vacate dated 20th August 2015 was irregular, that only the National Land Commission could issue such notices under section 5 of the National Land Commission Act and Part VIII of the Land Act, that their land had never been gazetted for compulsory acquisition, and that no compensation had been paid, all contrary to Article 40 of the Constitution and the right to fair administrative action. The respondents countered that the titles were fruits of fraud, that the original parcel had been exchanged with Mautuma Central Settlement Scheme/1397, and that the petitioners' non-disclosure of this disentitled them to equitable relief. Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, the court held the petitioners failed to show a prima facie case with probability of success or irreparable injury not compensable by damages, and dismissed the application with costs on 30th May 2018.

Key legal issues

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01

Whether the Giella principles for interlocutory injunction were satisfied

Holding

The petitioners failed on both the prima facie case and irreparable injury limbs; the application was dismissed with costs.

Reasoning

The court applied the settled Giella v Cassman Brown conditions and the Mrao definition of a prima facie case. Despite proof of title to the subdivisions, the respondents' allegation that the original parcel South Maragoli/Bugonda/2097 had been exchanged with Mautuma Central Settlement Scheme/1397, and the petitioners' non-disclosure of that fact, led the court to conclude no prima facie case with probability of success existed and no irreparable injury compensable only by injunction was shown.

p. 3

Legal principles established

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  • A prima facie case requires more than an arguable case; the evidence must show an infringement of a right and probability of success at trial

Court orders

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  1. 1.The Notice of Motion dated 17th March 2017 seeking conservatory/interim injunction is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40 (protection of right to property)
  • National Land Commission Actsection 5
  • Land ActPart VIII (compulsory acquisition of interests in land)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2012rules 21 and 22

Cases cited (2)

  • Giella vs. Cassman Brown Ltd
    (1973) EA 358
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 others
    (2003)
Jurisdiction invoked
Rules 21 and 22 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2013

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, "Hezekiah Mavisi Ondego & 8 others v County Government of Vihiga & another [2018] KEELC 3053 (KLR)", Case Analysis (2018). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3053/eng@2018-05-30

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