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ELCAllowedNot stated in judgment (Notice of Motion dated 11th May 2017)· [2018] KEELC 3687 (KLR)

Omar Maro Barisa v Muramba Bakari Omar & another [2018] KEELC 3687 (KLR)

Environment and Land Court
3 May 2018
JOJ.O. Olola
969 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court protected a farmer who occupied Tana Delta land since 1972, restraining claimants who showed no clan authority.

What this practically means

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Executive summary

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The Plaintiff, Omar Maro Barisa, moved the Court by Notice of Motion dated 11th May 2017 seeking a temporary injunction to restrain the two Defendants from trespassing on and entering his approximately 12-acre parcel of land at the Tana Delta pending the hearing of the suit. He claimed to have settled on the land since 1972 and alleged that the Defendants, a father and son, were interfering with his agricultural activities and threatening eviction. In response, the Defendants asserted that the land belongs to the Kina Maziwani Clan of the Pokomo tribe, that the Plaintiff belongs to a different clan, and that the Plaintiff's father had been granted only a licence for temporary subsistence farming by their relative Haji Said aka Mayowe, such licence being revocable at will under Pokomo custom. They also faulted the Plaintiff for declining arbitration by the Pokomo Council of Elders ('Gasa'). The Court applied the established principles for interlocutory injunctions: prima facie case with probability of success, irreparable injury, and balance of convenience. Noting that the Plaintiff's possession and long occupation were uncontested and that the Defendants produced no authority from their clan or any special connection to the land personally entitling them to claim it, the Court found a prima facie case established, holding that the Plaintiff was entitled to the Court's protection pending proof of the customary issues at trial. The application dated 11th May 2017 was allowed with costs in the cause. Judgment delivered at Malindi on 3rd May 2018 by J.O. Olola, Judge.

Key legal issues

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01

Whether the plaintiff established a prima facie case for a temporary injunction

Holding

The plaintiff, in possession and occupation of the land since 1972, established a prima facie case with a probability of success.

Reasoning

Possession and long occupation since 1972 were uncontested. The defendants claimed the land belonged to their Kina Maziwani Clan and that the plaintiff's father held only a licence, but they exhibited no authority from the clan nor any special connection with the land entitling them personally to reclaim it. Clan traditions could be proved at trial, but meanwhile the plaintiff deserved the court's protection. Hence a prima facie case with probability of success was made out.

p. 2

Legal principles established

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  • An applicant for a temporary injunction must show a prima facie case with a probability of success; that he might otherwise suffer irreparable injury; and where the court is in doubt, the application is decided on a balance of convenience.

Court orders

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  1. 1.Temporary injunction restraining the defendants from trespassing on and entering the plaintiff's 12-acre parcel of land at Tana Delta pending the hearing and determination of the suit
  2. 2.Costs of the application to be in the cause
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (injunction application in a pending land suit)

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, "Omar Maro Barisa v Muramba Bakari Omar & another [2018] KEELC 3687 (KLR)", Case Analysis (2018). Not stated in judgment (Notice of Motion dated 11th May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3687/eng@2018-05-03

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