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ELCDismissedNot stated in the judgment (Kericho ELCC; suit concerning KERICHO/EAST SOTIK S.S/1114)· [2018] KEELC 3779 (KLR)

Eric Kipngeno Koech v Joseph Cheruiyot Mesis & another [2018] KEELC 3779 (KLR)

Environment and Land Court
13 April 2018
JOJ.M. ONYANGO
1,548 words in judgment
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The bottom line

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A Kenyan landowner with a title deed lost his injunction because he never took possession of the land for nearly ten years.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of land parcel KERICHO/EAST SOTIK S.S/1114 measuring 0.57 hectares, applied by notice of motion dated 27 September 2017 for a temporary injunction restraining the defendants - the son and grandson of Zibora Cherotich Maina, the original registered owner - from re-entering, trespassing on, cultivating or interfering with the property pending the hearing of the suit. The application followed a ruling of 15 December 2017 setting aside an earlier ex parte order. The plaintiff deponed that he acquired the land from Paul K. Maritim, who bought it from Zibora Maina, and that the defendants trespassed in November 2016, damaging his fence and crops, leading to Bomet PM Criminal Case No. 1636 of 2016 against the 1st defendant. The defendants opposed, alleging the plaintiff's title was fraudulently obtained in collusion with the Land Registrar Bomet, that Maritim bought from Joseph Cheruiyot Mesis rather than the registered proprietor, and that the plaintiff was never in occupation. Applying the Giella v Cassman Brown test and the lower-risk-of-injustice approach in Amir Suleiman v Amboseli Resort, the court held that the challenge to the validity of the title, the plaintiff's lack of possession for nearly ten years, and the balance of convenience favouring the defendants meant the threshold for an injunction was not met. The application was dismissed with costs in the cause, and the parties were directed to comply with order 11 within 30 days.

Key legal issues

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01

Prima facie case with probability of success

Holding

Not established: the validity of the plaintiff's title is seriously challenged and the plaintiff is not in possession, militating against injunctive relief

Reasoning

The plaintiff produced a title deed issued in 2015, but the defendants allege it was obtained unprocedurally and by fraud, alleging Paul Maritim bought from Joseph Cheruiyot Mesis rather than the registered proprietor Zibora Maina. The court held that validity of title is a weighty issue determinable only at full hearing, and that the plaintiff's lack of possession since his alleged 2007 purchase weighs against the injunction.

p. 2
02

Irreparable loss

Holding

Not convincingly demonstrated because the plaintiff stayed almost ten years before attempting to take possession

Reasoning

The plaintiff pleaded he bought the land in 2007 yet appears to have attempted possession only in 2016. His assertion that he would suffer irreparable loss was therefore unconvincing. The court treated the delay in taking possession as undermining the claim that damages would be inadequate, denying the second Giella limb.

p. 2
03

Balance of convenience

Holding

Tilts in favour of the defendants pending determination of the validity of the plaintiff's title

Reasoning

The plaintiff's attempt to take possession resulted in violence, the subject of Bomet PM Criminal Case No. 1636 of 2016. Adopting the Amir Suleiman/Films Rover lower-risk-of-injustice approach, the court found the balance of convenience favoured restraining the plaintiff rather than the defendants until title validity is determined at trial.

p. 2

Legal principles established

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  • The Giella v Cassman Brown test governs the grant of temporary injunctions: prima facie case with probability of success, irreparable injury not adequately compensable by damages, and balance of convenience if in doubt
  • Where the court is in doubt it should take whichever course carries the lower risk of injustice
  • Section 26 of the Land Registration Act confers prima facie indefeasibility of title subject to provisos for fraud or misrepresentation and titles acquired illegally, unprocedurally or through a corrupt scheme

Court orders

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  1. 1.The application for injunction is dismissed
  2. 2.Parties to comply with order 11 of the Civil Procedure Rules within 30 days to pave way for expeditious disposal of the suit
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Land Registration Actsection 26 (including provisos 26(a) and 26(b))
  • Civil Procedure RulesOrder 11

Cases cited (3)

  • Giella V Cassman Brown
    1973 EA 358
  • Amir Suleiman V Amboseli Resort Limited
    (2004) eKLR
  • Films Rover International
    1986 3 All ER 772
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; application under the Civil Procedure Rules (order 11 compliance directed)

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, "Eric Kipngeno Koech v Joseph Cheruiyot Mesis & another [2018] KEELC 3779 (KLR)", Case Analysis (2018). Not stated in the judgment (Kericho ELCC; suit concerning KERICHO/EAST SOTIK S.S/1114). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3779/eng@2018-04-13

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