Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in the judgment· [2019] KEELC 1482 (KLR)

Moses Murimi Masiaga v Thomas Magaiwa Sarima & another [2019] KEELC 1482 (KLR)

Environment and Land Court
24 September 2018
GOG.M.A. Ongondo
1,259 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan land buyer who couldn't prove his case outright got a freeze on all dealings instead of a full injunction.

What this practically means

#

Executive summary

#
The plaintiff, Moses Murim Masiaga, moved the Environment and Land Court at Migori by Notice of motion seeking a temporary injunction restraining the defendants from entering upon, trespassing into, developing, alienating, selling, transferring or otherwise interfering with land parcel BUGUMBE/MABERA/199 pending the hearing and determination of the suit. The plaintiff claimed that in 2012 he entered a sale agreement with the 1st defendant for purchase of part of the land registered in the names of two deceased persons for Kshs.340,000, paid Kshs.290,000, took possession, planted oranges and fenced the portion. He alleged that on 2nd October 2017 the defendants' agents forcefully entered, vandalized his fence, removed building materials and began erecting a building. The defendants opposed, contending the agreement was illegal for want of Land Control Act consent, that it involved intermeddling with a deceased person's estate under Section 45 of the Law of Succession Act, and that damages would suffice. The court framed the question as whether the applicant met the Giella v Cassman Brown triple test. Considering Mrao Ltd v First American Bank, Kenya Commercial Finance Co Ltd v Afraha Education Society and Musa Angira Angira v ICDC, the court found the issues highly contested and suited to trial on merits. Instead of the injunction sought, it directed both sides to maintain the status quo, with no further fencing, building, development, lease or transfer pending determination of the suit. Costs of the application were to be in the cause, and the matter was set for pre-trial directions on 21/11/2018.

Key legal issues

#
01

Whether the applicant met the Giella triple test for an interlocutory injunction

Holding

The court did not find the full injunction merited; instead it directed maintenance of status quo pending the hearing of the suit on merit

Reasoning

The court applied the Giella test as defined in Mrao Ltd v First American Bank and Kenya Commercial Finance Co Ltd v Afraha Education Society, but found the issues around the alleged sale of 1.25 acres and the alleged unlawful entry were highly contested and required a full hearing on merits. Following Musa Angira Angira v ICDC, it opted for status quo as the appropriate interim protection.

p. 2
02

Jurisdiction to grant interim orders preserving the suit land

Holding

The court has inherent and discretionary powers under Sections 3 and 3A of the Civil Procedure Act, Order 40 Rule 1(a) of the Civil Procedure Rules, and Section 13(7) of the Environment and Land Court Act to grant interim or permanent injunctions

Reasoning

The court grounded its power to preserve the subject matter in dispute in statutory provisions invoked in the application, noting the orders may include interim or permanent injunctions to preserve the subject matter pending determination of the suit.

p. 2

Legal principles established

#
  • The three Giella v Cassman Brown requirements for an interlocutory injunction are to be applied as separate, distinct and logical hurdles to be surmounted sequentially
  • Where issues in controversy are highly contested, maintenance of status quo may be the appropriate interim order in lieu of an injunction

Court orders

#
  1. 1.The applicant and the respondents directed to maintain the status quo obtaining on the suit land
  2. 2.No further fencing, building or any other development, lease or transfer of the land pending hearing and determination of the suit on merit
  3. 3.Costs of the application to be in the cause
  4. 4.Mention for pre-trial directions on 21/11/2018; defendants/respondents to be served

Authorities

#

Legislation

  • Civil Procedure ActSections 3 and 3A
  • Civil Procedure Rules, 2010Order 40 Rule 1(a)
  • Environment and Land Court ActSection 13(7)
  • Land Control Act (Cap 302)Section 6(1)
  • Law of Succession Act (Cap 60)Section 45

Cases cited (6)

  • Giella vs Cassman Brown & Co. Ltd
    (1973) EA 358
  • Joseph Mathenge Kamutu vs Joseph Wainaina Karanja and Another
    (2015) eKLR
  • Nelson Githinji and Another vs Munene Irangi
    CA 133 of 1987
  • Mrao Ltd vs First American Bank of Kenya Ltd and 2 others
    (2003) KLR 125
  • Kenya Commercial Finance Co. Ltd vs Afraha Education Society
    (2001) Vol. 1 EA 86
  • Musa Angira Angira vs ICDC
    (2015) eKLR
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act as read with Order 40 Rule 1(a) of the Civil Procedure Rules, 2010, and Section 13(7) of the Environment and Land Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Moses Murimi Masiaga v Thomas Magaiwa Sarima & another [2019] KEELC 1482 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1482/eng@2019-09-24

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