Andrew Kiprotich Barsiele v Paul Kiptanui Barmase & 2 others [2018] KEELC 3688 (KLR)
The bottom line
#The Kericho Environment and Land Court protected a registered landowner by freezing a disputed family sub-division until the full case is heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case with a probability of success
Yes - the annexed title deed and official search showing the plaintiff as registered proprietor are prima facie evidence of ownership under section 22 of the Land Registration Act; the disputed sub-division can only be resolved at a full hearing, and the plaintiff's occupation is uncontroverted.
The court applied Mrao v First American Bank's definition of a prima facie case and found the plaintiff's title documents satisfied it. Although the defendants allege the land is family land held in trust and has been sub-divided into new parcels, the manner of sub-division is contested and can only be determined at the full hearing, so the plaintiff's registered title carried the day at this interlocutory stage.
Whether the balance of convenience favours granting the injunction
Yes - the court was persuaded that the balance of convenience tilts in the plaintiff's favour and granted the temporary injunction preserving the status quo.
Having weighed the pleadings, affidavits, annextures and rival submissions, the court concluded the balance of convenience favoured the plaintiff, restraining the defendants from completing registration of the resultant parcels of the 2016 sub-division or interfering with the plaintiff's occupation pending the full hearing of the suit.
Legal principles established
#- The conditions for granting an interlocutory injunction are those in Giella v Cassman Brown: prima facie case, irreparable injury not adequately compensable in damages, and balance of convenience where in doubt.
- A certificate of title is prima facie evidence that the person named as proprietor is the absolute and indefeasible owner (section 22, Land Registration Act).
- On an interlocutory injunction application the court does not make final findings but weighs the relative strength of the parties' cases.
Court orders
#- 1.A temporary order of injunction restraining the Defendants/Respondents, their agents, servants, assignees, representatives or nominees from entering into, trespassing onto, transferring, hiring, surveying, continuing with the process of registration of the alleged resultant parcels from the sub-division carried out on 17th January 2016, or in any other manner interfering with the Plaintiff/Applicant's quiet use, occupation and enjoyment of KERICHO/KIMULOT/413 pending the hearing and determination of the suit
- 2.Costs of the application to be in the cause
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andrew Kiprotich Barsiele v Paul Kiptanui Barmase & 2 others [2018] KEELC 3688 (KLR)", Case Analysis (2018). Notice of Motion dated 23rd January 2018 (suit pending, Kericho ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3688/eng@2018-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.