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ELCPartially AllowedNot stated in the judgment· [2018] KEELC 4105 (KLR)

Veronicah Kimoi Kimitei v Fracis Kosgei Argut [2018] KEELC 4105 (KLR)

Environment and Land Court
8 February 2018
MOM. A. Odeny
2,754 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner won interim protection for disputed property but couldn't force the removal of the other side's fence before a full trial.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Eldoret on a Notice of Motion dated 12th May 2017 by the plaintiff, a lessee of land parcel KABARNET TOWNSHIP/177, seeking a temporary injunction restraining the defendant from trespassing on or interfering with the suit land, an interlocutory mandatory injunction compelling removal of the defendant's fence and barriers, police assistance in enforcement, and costs. The plaintiff relied on a certificate of lease dated 15th December 2016, an allotment letter dated 19th May 1995, payment receipts and approvals from the Kabarnet Town Administrator, the County Government of Baringo and the National Land Commission. The defendant, whose father Philemon Argut Koskei was allegedly allotted the same property on the same date, contended he had been in continuous occupation since 1995, held title to L.R 9038/204, and that the plaintiff only began paying rent in 2016. Applying the Giella principles, the court found the plaintiff had established a prima facie case, noting a discrepancy in the defendant's title numbers, and held damages would not be an adequate remedy, adopting the Mosiomo dictum. However, applying the Halsbury test as adopted in Kenya Breweries Ltd v Washington Okeyo and Locabail, the court found no special circumstances to justify an interlocutory mandatory injunction and declined that limb. The application was partially allowed with costs to the plaintiff, and the suit land was preserved pending full hearing.

Key legal issues

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01

Prima facie case

Holding

The plaintiff established a prima facie case on the documents, warranting preservation of the suit land pending full hearing

Reasoning

The plaintiff annexed an allotment letter, certificate of lease and approvals from the County Government of Baringo and the National Land Commission. Though the respondent also produced documents claiming the same land, there was a discrepancy in the title numbers, which justified preservation of the suit land pending determination at the full hearing.

p. 3
02

Adequacy of damages

Holding

Damages would not be an adequate remedy given the clear breach of the law alleged

Reasoning

Adopting the holding in Joseph Siro Mosiomo v Housing Finance Company of Kenya, the court held that damages cannot substitute for a crystallized right protectable by injunction, and the defendant could not be allowed to benefit from a breach of the law merely because he could pay damages.

p. 3
03

Interlocutory mandatory injunction

Holding

Refused; no special circumstances established

Reasoning

Relying on Kenya Breweries Ltd v Washington Okeyo and Locabail International Finance Ltd v Agro Export, the court applied the Halsbury test that a mandatory injunction is not normally granted interlocutorily absent special circumstances, and a higher standard of assurance is required than for a prohibitory injunction. The plaintiff failed to meet that threshold.

p. 3

Legal principles established

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  • A mandatory injunction on interlocutory application is granted only in clear cases or where there are special circumstances, and the court must feel a high sense of assurance that the injunction would be vindicated at trial
  • Damages are not a substitute for protection of a crystallized right where there is a clear breach of the law

Court orders

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  1. 1.The plaintiff's application dated 12th May 2017 partially allowed
  2. 2.Mandatory injunction (prayer No. 2) declined
  3. 3.Interim restraint order issued preserving the suit land pending full hearing
  4. 4.Costs of the application to the plaintiff/applicant

Authorities

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Legislation

  • Land Registration Actsection 25

Cases cited (6)

  • Jai Super Power Cash and Carry Ltd vs. Nairobi City Council and two Others
    Civil Appeal No. 111 of 2002
  • Joseph Siro Mosiomo Vs Housing Finance Company of Kenya
    Nairobi HCCC No. 265 of 2007 [2008] eKLR
  • Waithaka —vs- Industrial and Commercial Development Corporation
    (2001) KLR 374
  • Giella Casman Brown
  • Kenya Breweries Ltd vs Washington Okeyo
    (2002) EA 109
  • Locabail International Finance Ltd vs Agro Export & Another
    (1986), ALl ER 901
Jurisdiction invoked
Inherent jurisdiction to grant interlocutory injunctions in a land dispute (application dated 12th May 2017 by Notice of Motion)

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, "Veronicah Kimoi Kimitei v Fracis Kosgei Argut [2018] KEELC 4105 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4105/eng@2018-02-08

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