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ELCDismissedNot stated in the judgment as provided· [2018] KEELC 4915 (KLR)

Bajoh v Haban & another (Environment & Land Case 103 of 2017) [2018] KEELC 4915 (KLR)

Environment and Land Court
28 June 2018
JOJ.O. Olola
957 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to protect a land buyer who claimed more acreage than he actually purchased, because he had no documents proving the extra allocation.

What this practically means

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Executive summary

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The plaintiff, Abdalla Mohamed Bajoh, moved the Environment and Land Court at Malindi by an application dated 5th May 2017 seeking a temporary injunction to restrain the defendants from dealing with, fencing, developing or interfering with a plot of 0.36 hectares shown on Part Development Plan No. TRD/312/2009/27, and an order for removal of fences, structures and beacons placed by the defendants. The plaintiff asserted he bought 0.200 ha from the 1st defendant in October 2008 for Kshs 500,000/-, after which the defunct Tana River County Council allocated him additional land totalling 0.366 ha, on which he ran a petrol station until the 1st defendant invaded the land with surveyors in April 2017. The 1st defendant confirmed the sale of 0.200 ha but asserted he retained about 0.094 ha and alleged the plaintiff forged documents purporting to show a larger purchase. The 2nd defendant did not respond. Applying the Giella v Cassman Brown conditions and the Mrao definition of a prima facie case, the court found that no document evidenced a request for, or approval of, additional allocation; the allotment letter and PDP were silent on when any allocation occurred; and the claimed allocation appeared to include land already purchased. The court held the plaintiff was claiming land in excess of what he purchased and had shown no infringement of any right. The application was dismissed with costs to the 1st defendant.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

No prima facie case established; the plaintiff's claim over 0.366 ha lacked documentary proof of allocation of the extra land beyond the 0.200 ha purchased

Reasoning

The plaintiff bought 0.200 ha from the 1st Defendant, who retained about 0.094 ha. The claimed allotment letter and PDP did not show when any allocation occurred and were silent on any request or approval for additional land. The alleged allocation of 0.366 ha appeared to include land already purchased, and the plaintiff conceded the 1st Defendant retained a portion. On the Giella and Mrao tests, no apparent infringement of a right was demonstrated, so the injunction could not issue.

p. 3

Legal principles established

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  • A party cannot acquire or claim land in excess of what he purchased without a corresponding physical increment of acreage on the ground supported by evidence of allocation

Court orders

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  1. 1.The application dated 5th May 2017 is dismissed
  2. 2.Costs of the application awarded to the 1st Defendant
Jurisdiction invoked
Not expressly stated; interlocutory application in a land suit before the Environment and Land Court

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, "Bajoh v Haban & another (Environment & Land Case 103 of 2017) [2018] KEELC 4915 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4915/eng@2018-06-28

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