Kennedy Khisa Kundu v John Kundu Khisa [2018] KEELC 4838 (KLR)
The bottom line
#A Kitale court refused to stop an eviction because the plaintiff couldn't prove his plot was different from the one in the existing court decree.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case with probability of success
No. The plaintiff produced no maps or documentation delineating Plot No. 53D as distinct from Plot No. 50, his evidence was inferential and evasive, and he wrongly attempted to shift the burden of proof onto the defendant
The plaintiff relied on a sale agreement and clearance certificate dated after the decree and eviction order in HCCC No. 43 of 2007, which concerned Plot No. 50. He averred the plots were different without evidentiary support and improperly demanded that the defendant prove they were superimposed. The court found his averments evasive and peripheral, incapable of establishing a prima facie case.
Whether the plaintiff demonstrated irreparable injury not compensable by damages
No. In the absence of clear delineation of the boundaries of Plot No. 50 and Plot No. 53D, the defendant's clear averments outweighed the plaintiff's obfuscation; mere allegations of difference in size and number did not aid the plaintiff
A decree and eviction order against the plaintiff existed in HCCC No. 43 of 2007, which the plaintiff did not deny. He failed to identify the location, size or documentation of the premises he occupied versus those decreed. Had he shown the two plots were unrelated, the court might have considered irreparable damage, but mere allegation of differing size and number was insufficient.
Whether the plaintiff was entitled to relief on the balance of convenience
No. Although the court has discretion to grant relief on the balance of convenience to preserve the subject matter, it will not do so for a litigant whose pleading conceals the true picture; the plaintiff's lack of candour disentitled him
The Giella v Cassman Brown third test is discretionary, not automatic. Where a litigant pleads with maximum candour but fails the first two tests, the court may preserve the subject matter. But where the litigant uses an economy of facts to deliberately conceal the clear picture, the court is not obliged to rule in his favour on the balance of convenience. The court had expressed serious doubts about the plaintiff's candour.
Legal principles established
#- The balance of convenience is not available as of right to every litigant; a litigant who approaches the court with an economy of facts intended to conceal the true picture may be denied the court's discretionary relief on the balance of convenience
- At the interlocutory stage, it is the plaintiff's pleadings and evidence that are on trial to verify whether they present a prima facie case
Court orders
#- 1.The plaintiff's application dated 19/10/2015 seeking an injunction to restrain execution of the decree in Kitale High Court Civil Suit No. 43 of 2007 over Land Parcel Number 53D is dismissed
- 2.Costs of the application awarded to the defendant
- Jurisdiction invoked
- Inherent jurisdiction of the High Court to grant interlocutory injunctive relief pending determination of the suit (no specific provision cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kennedy Khisa Kundu v John Kundu Khisa [2018] KEELC 4838 (KLR)", Case Analysis (2017). Not stated in judgment (application dated 19/10/2015 arising from suit concerning Chepkorok Farm Plot No. 53D). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4838/eng@2018-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.