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ELCDismissed· [2018] KEELC 3958 (KLR)

John Kipkoskei Chumo v Vincent Bosuben & 4 others [2018] KEELC 3958 (KLR)

Environment and Land Court
27 February 2018
JOJ.M. ONYANGO
1,379 words in judgment
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The bottom line

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The Kericho Environment and Land Court refused to stop land use pending trial because the occupants had already been on the land for over three years.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kericho (J.M. Onyango J) on a Notice of Motion dated 23rd August 2017 in which the plaintiff/applicant sought an interlocutory injunction restraining the 1st defendant/respondent from using, grazing on, possessing, selling, disposing of, cultivating or entering land parcels formerly KERICHO/SEGEMIK/142, now sub-divided as KERICHO/SEGEMIK/1401 and 1402. The applicant, formerly registered proprietor of parcel 142, averred that the sub-division and registration of the 1st defendant were effected fraudulently and without his consent. The 1st respondent, through Paul Chepkwony's replying affidavit, asserted purchase of the property from Grace Chepkosgei, who had bought it from David Kibii Siele, the registered owner in 1997; the 2nd respondent confirmed that chain of transfer. The court framed a single issue: whether the applicant was entitled to injunctive relief. Applying Giella v Cassman Brown as restated in David I. Githuku, and the jurisprudence on mandatory injunctions in Bharat Petroleum and Kenya Breweries v Washington Okeyo, the court agreed with the respondents that the applicant was, in substance, seeking a mandatory injunction to evict parties who had occupied the land for over three years. No compelling circumstances were shown, and the balance of convenience did not favour the applicant. The application was dismissed with costs to the respondents.

Key legal issues

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01

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

Holding

The court did not find a prima facie case sufficient to justify interlocutory relief; the applicant claimed fraud but the respondents showed a chain of purchase and long occupation

Reasoning

Applying the Giella v Cassman Brown test as restated in David I. Githuku, the court examined whether the applicant, formerly registered owner of KERICHO/SEGEMIK/142, had shown an apparent infringement. The respondents' evidence of purchase through Grace Chepkosgei from David Kibii Siele, and over three years' occupation, undermined the applicant's claim that restraint was warranted at the interlocutory stage.

p. 2
02

Whether the balance of convenience tilted in the applicant's favour

Holding

It did not; the respondents had occupied the suit land for more than three years

Reasoning

The court held that restraining parties who had been in open occupation and use of the land for over three years, pending full trial, would effectively evict them before the case was heard. The court agreed with counsel for the respondents that the applicant was mischievously seeking a mandatory injunction dressed as a prohibitory one, and declined to disturb the status quo.

p. 3

Legal principles established

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  • A temporary mandatory injunction on an interlocutory application is granted only in rare cases with compelling circumstances, and only to restore the status quo, not to establish a new state of things
  • Where a party in occupation seeks to be restrained, the balance of convenience may favour the party in long-standing occupation

Court orders

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  1. 1.Application dated 23rd August 2017 dismissed with costs to the respondents

Authorities

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Cases cited (8)

  • Giella V Cassman Brown & Company Ltd
    1973 EA 358
  • David I. Githuku V George Munyua Mbira & 2 Others
    (2013) eKLR
  • Amir Suleiman V Amboseli Resort Limited
    (2004) eKLR
  • Films Rover International
    1986 3 All ER 772
  • Mrao V First American Bank of Kenya Limited
    (2003) eKLR
  • JM Gichange V Cooperative Bank of Kenya
    (2005)
  • Bharart Petroleum Corporation Ltd V Haro Chand Sachdeva
    AIR 2003
  • Kenya Breweries Ltd V Washington Okeyo
    (2002) eKLR
Jurisdiction invoked
Original civil jurisdiction over land disputes (suit over title to KERICHO/SEGEMIK land parcels); specific provision not stated in judgment

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, "John Kipkoskei Chumo v Vincent Bosuben & 4 others [2018] KEELC 3958 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3958/eng@2018-02-27

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