Flora Makokha Wanjala v Timothy Isaya Wakukha & Yohana Muchisi Isaya [2018] KEELC 4683 (KLR)
The bottom line
#The Environment and Land Court in Kakamega refused to stop land occupation because the owner couldn't show harm that money couldn't fix.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case with a probability of success
Although the applicant claimed to be the registered proprietor, the 2nd respondent raised fraud regarding the subdivision of S. KABRAS/BUSHU/1430, an issue reserved for trial; the court did not find a prima facie case sufficient to grant the injunction
The court applied the Giella v Cassman Brown principles and Mrao's definition of a prima facie case. The applicant asserted registered ownership and trespass, but the 2nd respondent contended he owned the parent parcel and that the subdivision occurred without his consent, raising fraud which the court held could only be determined at full hearing.
Whether the applicant would suffer irreparable injury not adequately compensable by damages
No - the applicant failed to demonstrate irreparable injury
The court found the applicant had not shown that she might suffer irreparable injury which damages could not adequately compensate. The 2nd respondent had argued the applicant neither resides on nor utilizes the land and thus stands to suffer no irreparable harm; the court accepted that the balance favoured the respondents.
Where the balance of convenience lies
The balance of convenience lies in favour of the defendants, who currently reside on the land with their families
The 2nd respondent deponed that he resides on the parcel with his family and ageing father, that it is his source of livelihood, and that the parcel was carved out of land he solely owned. On this material the court concluded the balance of convenience favoured the defendants rather than the non-resident applicant.
Legal principles established
#- The conditions for granting an interlocutory injunction are a prima facie case with probability of success, irreparable injury not adequately compensable by damages, and, if in doubt, the balance of convenience (Giella v Cassman Brown)
- A prima facie case is more than an arguable case; the evidence must show infringement of a right and the probability of the applicant's case upon trial (Mrao Ltd)
- Allegations of fraud cannot be determined on an interlocutory application but must await the full hearing
Court orders
#- 1.The application dated 12th May 2017 is dismissed
- 2.Costs to be in the cause
- Jurisdiction invoked
- Sections 3 and 3A of the Civil Procedure Act and Order 40 rules 1, 2, 3 and 4 and Order 51 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Flora Makokha Wanjala v Timothy Isaya Wakukha & Yohana Muchisi Isaya [2018] KEELC 4683 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4683/eng@2018-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.