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ELCOtherNot stated in the extract (Notice of Motion dated 21st September 2017)· [2018] KEELC 3141 (KLR)

Atanus Asienwa Mutekwa v Salimu Asumani & 8 others [2018] KEELC 3141 (KLR)

Environment and Land Court
30 May 2018
NMN.A. Matheka
1,148 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kakamega found a landowner had a strong enough ownership claim to protect, but froze things as they were instead of banning the defendants outright.

What this practically means

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Executive summary

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The plaintiff, Atanus Asienwa Mutenyo, moved the court by notice of motion dated 21st September 2017 under section 3A of the Civil Procedure Act and Order 39 rules 1, 2 and 3 of the Civil Procedure Rules, seeking a temporary injunction restraining the defendants from developing, constructing or working on plots Lugari/Likuyani/Block 1/Vihiga/204 and 205 at Likuyani pending the hearing and determination of the substantive suit filed on 24th January 2013. The plaintiff asserted that he bought the plots in 1979, built a residential house and rental premises on them, and obtained title deeds as absolute owner in 1989, but that the defendants, complete strangers without colour of right, had forcefully remained in occupation and begun further construction and demolition of his structures. The 8th defendant, swearing on behalf of all defendants, countered that ownership was hotly disputed; the plaintiff had allegedly combined members' parcels of Vihiga Farmers Ltd and registered them in his name through fictitious means prohibited in Kakamega Civil Case No. 344 of 1988, and had registered his non-member brother as owner of plot 205; the defendants had occupied since about 1978 as bonafide members allocated portions. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the court found the plaintiff had provided proof of ownership, though disputed, and had shown a prima facie case with chances of success. Rather than granting the injunction as prayed, the court ordered maintenance of the status quo of the suit property until final determination of the substantive suit, with costs of the application in the cause. Judgment was delivered at Kakamega on 30th May 2018 by N.A. Matheka J.

Key legal issues

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01

Whether the plaintiff established a prima facie case for interlocutory relief

Holding

Yes - proof of ownership was provided, albeit disputed, showing a prima facie case with chances of success

Reasoning

The court applied the Giella v Cassman Brown principles as elaborated in Mrao Ltd v First American Bank. The plaintiff produced title deeds for the suit plots as absolute owner registered in 1989. Although the defendants disputed the plaintiff's proprietorship and alleged fraudulent combination of members' parcels, the court found that proof of ownership, though contested, sufficed to demonstrate an apparent infringement of a right calling for rebuttal at trial.

p. 2
02

What interim relief should issue to preserve the suit property

Holding

Maintenance of the status quo rather than the full restraining injunction sought

Reasoning

The dispute over ownership and occupation was hotly contested, with each side claiming possession dating back to the late 1970s. Given the contested facts and the pending substantive suit filed on 24th January 2013, the court opted for the conservative preservation remedy of maintaining the status quo pending full trial, with costs reserved to the cause.

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 with probability of success, irreparable injury not adequately compensable by damages, and, if in doubt, the balance of convenience
  • A prima facie case is more than an arguable case; the evidence must show an infringement of a right and the probability of the applicant's case upon trial

Court orders

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  1. 1.That the status quo of the suit property be maintained until the final determination of the substantive suit
  2. 2.That the costs of this application be in the cause

Authorities

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Legislation

  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder 39 rules 1, 2 and 3

Cases cited (3)

  • Giella vs. Cassman Brown
    (1973) EA 358
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 others
    (2003)
  • Kakamega Civil Case No. 344 of 1988
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 39 Rules 1, 2 and 3 of the Civil Procedure Rules (inherent jurisdiction and interim preservation/injunction)

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, "Atanus Asienwa Mutekwa v Salimu Asumani & 8 others [2018] KEELC 3141 (KLR)", Case Analysis (2018). Not stated in the extract (Notice of Motion dated 21st September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3141/eng@2018-05-30

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