Yako Supermarket & another v National Lands Commission & 4 others [2019] KEELC 1644 (KLR)
The bottom line
#A Kakamega court protected two landowners' titles by freezing the situation as-is, rather than banning the school from the disputed land outright.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioners demonstrated a prima facie case with a probability of success
The court found a prima facie case established, noting the petitioners' registered titles and that the decision of the court in Kakamega Judicial Review Case No. 20 of 2012 quashing the revocation of their titles still stands.
The petitioners produced registered titles to the suit parcels as bonafide purchasers for value. A gazette notice revoking their titles had been quashed in judicial review proceedings and that order had never been appealed. Although the National Land Commission subsequently conducted its own review and recommended revocation, the subsisting quashing order entitled the petitioners to protection at the interlocutory stage, establishing a prima facie case with probability of success at trial.
Whether the pleadings were defective for suing the Chairman of the Board of Management rather than the Board
The objection failed because the word 'Chairman' had been struck out of the pleadings.
The 4th respondent argued that under the Basic Education Act, 2013 the Chairperson of the Board of Management is not synonymous with the Board as a legal entity, making the petition defective. The court held that the word Chairman was struck out from the pleadings on 23rd July 2019, so the pleadings were no longer defective and the preliminary point did not dispose of the application.
What interim relief should issue pending determination of the petition
The court ordered maintenance of the status quo rather than a full temporary injunction.
Having found a prima facie case, the court noted the 4th respondent's entry onto the suit property in June 2019, the ongoing competing claims and past litigation, and the petitioners' developments. Rather than granting the sweeping injunction sought ex parte and inter-partes, the court preserved the position of the parties as at the date of the ruling by ordering that the status quo be maintained pending the hearing and determination of the petition, with costs in the cause.
Legal principles established
#- Interlocutory injunction applications are determined on the Giella v Cassman Brown principles of prima facie case, irreparable damage and balance of convenience
- An interlocutory injunction is an equitable relief which a court may decline where the applicant's conduct does not meet the approval of a court of equity, and injunctions are not issued where the threatened event has already occurred
Court orders
#- 1.That the status quo be maintained pending the hearing and determination of the petition
- 2.That costs be in the cause
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes; application brought under Section 3 & 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yako Supermarket & another v National Lands Commission & 4 others [2019] KEELC 1644 (KLR)", Case Analysis (2019). Petition dated 2019 with Notice of Motion dated 27th June 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1644/eng@2019-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.