Julius Barasa Burudi & 4 others v Jimmy Habil Mkombo [2018] KEELC 4654 (KLR)
The bottom line
#The Kakamega Environment and Land Court blocked any sale or transfer of disputed land while a long-time occupants' adverse possession claim is decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants demonstrated a prima facie case for an interlocutory injunction founded on adverse possession
The court applied the Giella principles and found the applicants had not demonstrated irreparable injury not compensable by damages, so the full injunction was not granted, but an order of inhibition was issued to preserve the suit property pending trial
The court recited the established Giella v Cassman Brown principles and Mrao's definition of a prima facie case. It accepted the applicants should be heard on their adverse possession claim, but in light of the respondent's evidence of eviction under the Kakamega ELC No. 513 of 2014 decree and possible transfer of the land, it declined the injunctive relief sought and instead inhibited any further dealings on the title pending full hearing.
Whether the applicants' claim was res judicata or overtaken by events
The court did not uphold the res judicata objection; it preserved the status of the title through inhibition pending determination of the suit
The respondent argued the land had been litigated twice and the applicants evicted under a decree in Kakamega ELC No. 513 of 2014, rendering the application res judicata and moot since he had transferred the land. The court did not pronounce itself in favour of that objection, instead granting the respondents an opportunity to be heard and issuing an inhibition to prevent any registration of dealings pending the hearing and determination of the suit.
Legal principles established
#- An applicant for an interlocutory injunction must show a prima facie case with probability of success, irreparable injury not adequately compensable by damages, and failing which the court decides on the balance of convenience
- A prima facie case is more than an arguable case; the evidence must show an infringement of a right and the probability of the applicant's case upon trial
Court orders
#- 1.That an order of inhibition do issue against title No. South/Kabras/Shamberere/367 prohibiting registration of any dealings whatsoever pending hearing and determination of this suit
- 2.Costs to be in the cause
- Jurisdiction invoked
- Order 40 rules 1 and 2 of the Civil Procedure Rules, Sections 3, 31 and 63(e) of the Civil Procedure Act and Section 68 of the Land Registration Act No. 3 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Barasa Burudi & 4 others v Jimmy Habil Mkombo [2018] KEELC 4654 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4654/eng@2018-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.