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ELCPartially AllowedNot stated in the judgment (Motion dated 7th September 2017)· [2018] KEELC 3797 (KLR)

Caren Ondiek Agwa (suing as the Administrator of the Estate of the Late Joshua Agwa Akoko ) v Melkishadek Akoko Ochich [2018] KEELC 3797 (KLR)

Environment and Land Court
14 March 2018
GOG. M. A. Ongondo
1,427 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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When a land dispute is hotly contested, the Environment and Land Court may freeze the situation as it is instead of granting either side a full injunction.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Migori on a Notice of Motion dated 7th September 2017 brought by the plaintiff, the widow and administrator ad litem of the estate of Joshua Agwa Akoko, seeking a temporary injunction restraining the defendant from trespassing on, fencing off, constructing on, cultivating, or interfering with land parcel Central Karachuonyo/Kogweno/Kawuor/1322 pending the hearing of the suit. The plaintiff claimed the deceased was the registered owner and that she was in actual possession, while the defendant asserted he purchased the land out of LR No. Central Karachuonyo/Kogweno/Kawuor/137 in 2004, was put into possession by the deceased, and had built a semi-permanent house and fence. The plaintiff alleged forgery of the defendant's documents. After oral submissions limited to five minutes per counsel, the court applied the Giella principles. Finding the issues highly contested and the parties unable to agree on maintaining status quo, the court invoked Practice Direction No. 32 of the ELC Practice Directions and Section 13(7) of the Environment and Land Court Act, holding that its interim preservation powers include maintenance of the prevailing status quo. It declined the injunction in the terms sought and instead ordered both parties to maintain the obtaining status quo, barring further permanent structures, transfers, subdivisions or parting with any portion of the suit land pending determination of the suit. Costs of the application were reserved to the cause.

Key legal issues

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01

Whether the applicant established a prima facie case with a probability of success

Holding

The court found apparent infringement of the plaintiff's rights but, given the serious contest over ownership and possession, held the suit land required an order of preservation rather than an injunction

Reasoning

The applicant relied on a limited grant ad litem and a search, while the respondent exhibited a search showing himself as proprietor and sale agreements. The claim was strongly contested, so the court declined to grant the injunction sought and instead opted for preservation pending full hearing on the merits.

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02

Whether the court could order maintenance of status quo where parties could not agree

Holding

Yes. Relying on Practice Direction No. 32 of the ELC Practice Directions and Section 13(7) of the ELC Act, the court exercised its discretion to order maintenance of the status quo

Reasoning

The parties did not agree to maintain status quo as encouraged by Practice Direction No. 32, which empowers the judge to order status quo bearing in mind the overriding interest of justice. The court found, following Musa Angira v ICDC, that such an order was the merited preservation remedy in a highly contested matter.

p. 3

Legal principles established

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  • A prima facie case in a civil application includes but is not confined to a genuine and arguable case
  • An injunction is an equitable and discretionary remedy whose duration depends on the circumstances of each case
  • The Environment and Land Court's power to grant interim preservation orders includes maintenance of the prevailing status quo

Court orders

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  1. 1.The parties to maintain the obtaining status quo whereby either party shall not erect further permanent structures on and or transfer or sub divide or part with any portion of the suit land pending the hearing and determination of the suit
  2. 2.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1(a)
  • Civil Procedure RulesOrder 51 Rule 16
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Environment and Land Court ActSection 13(7)
  • Environment and Land Court Practice DirectionsDirection No. 33(a); Direction No. 32

Cases cited (4)

  • Giella –v- Cassman Brown Co. Ltd
    (1973) EA 358
  • Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 others
    (2003) KLR 125
  • Musa Angira –vs- Industrial and Commercial Development Corporation
    (2015) eKLR
  • National Bank of Kenya Ltd –v- Shimmers Plaza Ltd
    (2009) KLR 278
Jurisdiction invoked
Section 13(7) of the Environment and Land Court Act and Order 40 Rules 1(a), Sections 1A & B, 3A & 63(e) of the Civil Procedure Act

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, "Caren Ondiek Agwa (suing as the Administrator of the Estate of the Late Joshua Agwa Akoko ) v Melkishadek Akoko Ochich [2018] KEELC 3797 (KLR)", Case Analysis (2018). Not stated in the judgment (Motion dated 7th September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3797/eng@2018-03-14

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