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ELCDismissedNot stated in the judgment as provided· [2018] KEELC 3065 (KLR)

Francis Musolio Cheloti v Maigwe Kiarie & Jane Maigwe Kiarie (Environment & Land Case 346 of 2013) [2018] KEELC 3065 (KLR)

Environment and Land Court
22 May 2018
NMN.A. Matheka
957 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kakamega dismissed a land buyer's injunction bid because he could not prove his claimed right to half the disputed parcel.

What this practically means

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Executive summary

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The plaintiff, Francis Musolio Cheloti, moved the court by a Notice of Motion dated 21st January 2014 under section 3A and 63(c) and (e) of the Civil Procedure Act and Order 40 rules 1 and 2 of the Civil Procedure Rules, seeking temporary injunctions restraining the respondents from tilling, constructing, trespassing, selling, leasing or otherwise interfering with his alleged ½ share of land parcel No. S. Kabras/Chemuche/1248, pending hearing of the suit. He claimed to have purchased the half share for Ksh. 350,000/- from the 1st respondent under a written agreement, that transfer had been refused, that the respondents were offering the portion to a third party, and that the title bore questionable entries bordering on forgery. The 2nd respondent opposed the application as an abuse of process, denying she ever agreed to sell any portion, disputing the sale agreement (which bore neither her name, signature nor ID number), and explaining the caution she lodged on the title upon learning her estranged husband, the 1st respondent, intended to dispose of the land. The 1st respondent's supplementary affidavit supported the application. Applying the Giella v Cassman Brown conditions as elaborated in Mrao Ltd v First American Bank of Kenya Ltd, the court held that the applicant failed to demonstrate a prima facie case with a probability of success, and failed also to show irreparable injury not compensable by damages. The application was dismissed with costs on 22nd May 2018.

Key legal issues

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01

Whether a prima facie case with a probability of success was established

Holding

The applicant failed to show a prima facie case with a probability of success

Reasoning

The applicant relied on a sale agreement for ½ of the jointly-owned parcel, but the 2nd respondent denied being party to the agreement and placed a caution on the land. The court noted there were no annexures supporting the application on the court file and found no apparent infringement of a right calling for rebuttal, applying the Giella v Cassman Brown and Mrao Ltd tests.

p. 2
02

Whether irreparable loss not compensable by damages was demonstrated

Holding

The applicant failed to show irreparable injury that would not be adequately compensated by an award of damages

Reasoning

Although the applicant claimed he invested all his savings and stood to suffer irreparable loss, the court found he did not demonstrate that damages would be inadequate, this being the second Giella condition. Having failed the first two conditions, the injunction could not issue.

p. 2

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 a probability of success at trial

Court orders

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  1. 1.The application for temporary injunction is dismissed with costs
Jurisdiction invoked
Section 3A & 63(c) and (e) of the Civil Procedure Act and Order 40 rules 1 & 2 of the Civil Procedure Rules

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, "Francis Musolio Cheloti v Maigwe Kiarie & Jane Maigwe Kiarie (Environment & Land Case 346 of 2013) [2018] KEELC 3065 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3065/eng@2018-05-22

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