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ELCDismissedNot stated in the judgment (Busia ELC; suit filed 23rd March 2018)· [2019] KEELC 857 (KLR)

Cosmas Wandera Khasino v Damiano Ouma [2019] KEELC 857 (KLR)

Environment and Land Court
14 November 2019
AOA. Omollo
2,106 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Busia Environment and Land Court refused to stop a burial on disputed land because the plaintiff held no grant or title proving his claim.

What this practically means

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Executive summary

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The Plaintiff, Cosmas Wandera Khasino, moved the Environment and Land Court at Busia by an application dated 22nd October 2019 under Order 11 rule 3(2)(a) of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act, seeking a temporary injunction restraining the Defendant from burying the remains of his late wife, Rispa Makokha Ojiambo, on land known as SAMIA/WAKHUNGU/ODIADO/1206 pending the hearing of the suit. The Plaintiff, a son of the late John Khasino, alleged that John had sold the property to the late Fredrick Ojiambo Mboko, that the Defendant had merely been a caretaker and witness to that sale, and that the Defendant had fraudulently caused the property to be registered in his own name. He asserted a constructive trust and relied on section 45 of the Law of Succession Act against intermeddling. The Defendant, the registered proprietor in occupation since 1987 who had previously buried relatives there without objection, cross-applied to vacate the interim orders issued on 24th October 2019, and the parties agreed it would operate as a substantive response. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, Justice A. Omollo found unresolved questions of the Plaintiff's capacity and locus standi, since he sued on behalf of estates without an ad litem grant or disclosed authority. Noting the Defendant's long occupation and registered title, and that burial was not irreversible, the court found no prima facie case and that the balance of convenience favoured the Defendant. The application was dismissed on 14th November 2019 with costs to the Defendant.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with probability of success

Holding

No prima facie case was established given the Defendant's long occupation and registered title

Reasoning

The Defendant deponed to occupation since 1987 and prior burials without objection, and holds registered title to the suit property. The Plaintiff did not deny that occupation, claiming only that the Defendant was a caretaker. Against that background, and given unresolved questions about the Plaintiff's capacity to sue, the court was not persuaded a prima facie case existed.

p. 3
02

Whether the Plaintiff had capacity and locus standi to sue for the estates

Holding

The Plaintiff sued on behalf of the estate of the deceased seller without an ad litem grant and for the benefit of the deceased buyer's estate without disclosing his source of authority

Reasoning

The Plaintiff claimed to hold title in trust for the beneficiaries of the late Fredrick Ojiambo Mboko's estate but produced no ad litem grant or letters of administration. One beneficiary, Patrick, was himself an administrator capable of suing in his own right and had already filed a separate suit. Suing for the buyer's estate without capacity was grounds for striking out.

p. 2
03

Where the balance of convenience lies

Holding

The balance of convenience favours the Defendant because burial is not irreversible

Reasoning

The court accepted the Defendant's submission that burial does not constitute irreparable harm since the process can be undone if the Plaintiff ultimately succeeds at trial. This, coupled with the absence of a prima facie case, disposed of the injunction application.

p. 3

Legal principles established

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  • The conditions for granting an interlocutory injunction are a prima facie case with probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience
  • A prima facie case in civil cases is one showing an apparent infringement of a right and probability of success upon trial, higher than an arguable case
  • Locus standi means a right to appear in Court or be heard in a proceeding

Court orders

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  1. 1.The application dated 22nd October 2019 is dismissed for lack of merit
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 11 rule 3(2)(a)
  • Civil Procedure ActSections 1A, 1B and 3A
  • The Law of Succession Act, Cap 160 Laws of KenyaSection 45
  • Constitution of KenyaArticle 40

Cases cited (3)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Mrao Limited Vs First American Bank of Kenya Limited & 2 Others
    (2003) eKLR
  • Alfred Njau & 5 Others vs City Council of Nairobi
    (1983) eKLR
Jurisdiction invoked
Order 11 rule 3(2)(a) of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act

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, "Cosmas Wandera Khasino v Damiano Ouma [2019] KEELC 857 (KLR)", Case Analysis (2019). Not stated in the judgment (Busia ELC; suit filed 23rd March 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/857/eng@2019-11-14

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