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ELCOtherNotice of Motion dated 16th February 2017· [2018] KEELC 4884 (KLR)

Richard Amayo Ogosi (Suing as he administrator of the estate of Washington Ogosi Adongo v John Andiege Awino & another [2018] KEELC 4884 (KLR)

Environment and Land Court
31 January 2018
GOG MA Ongondo
1,734 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, an administrator of the estate of the late Washington Agosi Adongo, moved the court by Notice of Motion dated 16th February 2017 under Order 40 of the Civil Procedure Rules and sections 1A, 3A and 63(e) of the Civil Procedure Act, seeking a temporary injunction restraining the defendants from constructing, developing or putting up any structures, including a posho mill, on land parcel LR No. Kabondo/Kakangutu East/486. He relied on a grant of letters of administration, an official search and photographs, contending the defendants had no title. The 1st defendant opposed, asserting he had purchased a portion of the land in 1978 from the plaintiff's father for Ksh. 7,500, held the title deed, and had been in occupation for over 35 years with structures existing since 2000. The court applied the Giella v Cassman Brown conditions and found the plaintiff had not demonstrated a prima facie case or irreparable harm not compensable in damages, noting that an interlocutory injunction would effectively amount to an eviction order since the defendants were already in occupation. Exercising its equitable discretion and its mandate under Section 13(7) of the Environment and Land Court Act 2012 to make preservation orders, and following Musa Angira Angira v ICDC, the court declined the injunction and instead ordered maintenance of the status quo pending trial: the defendants to continue occupying and using 0.6 Ha, the plaintiff not to interfere with their houses, and the defendants not to erect a posho mill or permanent structures on the disputed portion. Costs of the application were made costs in the cause. Judgment delivered at Migori on 31st January 2018 by G MA Ongondo, Judge.

Key legal issues

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01

Whether the plaintiff established a prima facie case and irreparable harm for a temporary injunction

Holding

The plaintiff failed to satisfy the Giella conditions; the defendants were already in occupation and had structures on the land, so an injunction was inappropriate

Reasoning

The plaintiff sought to restrain defendants from constructing on the suit property, but it was common ground that the defendants were already in occupation and had built structures, with the 1st defendant claiming purchase in 1978 and possession of the title deed. Granting an injunction at the interlocutory stage would effectively evict them. The plaintiff thus failed to show a prima facie case or harm not compensable in damages.

p. 3
02

Whether the court could grant an alternative conservation order

Holding

Relying on its power under Section 13(7) of the Environment and Land Court Act and the Musa Angira Angira case, the court ordered maintenance of the status quo in lieu of the injunction

Reasoning

Citing Mutungi J in Musa Angira Angira v ICDC, where the merited order was one conserving and preserving the property, and Section 13(7) of the Environment and Land Court Act 2012 mandating preservation orders, the court fashioned an order maintaining the prevailing status quo: defendants to continue occupying 0.6 Ha, plaintiff not to interfere with their houses, and defendants not to erect a posho mill or permanent structures on the disputed portion.

p. 3

Legal principles established

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  • The conditions for an interlocutory injunction are a probability of success, irreparable harm not adequately compensable by damages, and, if in doubt, the balance of convenience (Giella v Cassman Brown)
  • Where an injunction is not merited, the court may instead issue an order conserving or preserving the property by maintaining the status quo until the suit is heard and determined

Court orders

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  1. 1.Pending the hearing and determination of the suit, the plaintiff/applicant and the defendants/respondents shall maintain the obtaining status quo
  2. 2.The defendants/respondents to still occupy and use 0.6 Ha of the suit land
  3. 3.The plaintiff/applicant not to interfere with the houses built by the defendants/respondents on the 0.6 Ha
  4. 4.The defendants/respondents shall not put up a posh mill and any permanent structure on the disputed portion of the suit property
  5. 5.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1, 2 & 4
  • Civil Procedure RulesOrder 51 rule 16
  • Civil Procedure Actsections 1A, 3A & 63(e)
  • Constitution of Kenya, 2010Article 40
  • Environment and Land Court ActSection 13(7)
  • Law of Contract Act
  • Stamp Duty Act
  • Land Control Actsection 6
  • Limitation of Actions Act

Cases cited (3)

  • Showind Industries –vs– Guardian Bank Ltd & Anor
    (2002) 1 EA 284
  • Giella –vs– Cassman Brown & Co. Ltd
    (1973) EA 358
  • Musa Angira Angira –vs– ICDC
    (2015) eKLR
Jurisdiction invoked
Order 40 Rules 1, 2 & 4 of the Civil Procedure Rules; sections 1A, 3A & 63(e) of the Civil Procedure Act; Section 13(7) of the Environment and Land Court Act 2012

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, "Richard Amayo Ogosi (Suing as he administrator of the estate of Washington Ogosi Adongo v John Andiege Awino & another [2018] KEELC 4884 (KLR)", Case Analysis (2018). Notice of Motion dated 16th February 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4884/eng@2018-01-31

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