Roch Oburu Odhiambo v Migori County Government & another [2019] KEELC 1848 (KLR)
The bottom line
#A Kenyan court protected a plot owner from repossession by a county government, but chose a status quo order instead of a full injunction.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case with a probability of success
The court found that the applicant had demonstrated prima facie that he was the lawful allottee of the suit property through the documents marked ROO EXT 1 to 2D.
The applicant relied on his supporting affidavit and annexed documents, including a photocopy of the lease, invoices, receipts and newspaper extracts. The respondents argued non-compliance with special condition 2 of the allotment and want of cause of action. The court, however, was satisfied on the documents that the applicant had demonstrated prima facie that he was the lawful allottee of the suit property, satisfying the first Giella limb.
What interim relief was appropriate - a temporary injunction or maintenance of status quo
Although the applicant satisfied the prima facie threshold, the court held that the appropriate and merited order was maintenance of the prevailing status quo in lieu of the temporary injunction sought, in the interest of justice.
The court acknowledged its power under section 13(7)(a) of the Environment and Land Court Act to grant interim preservation orders including interim injunctions. Relying on Musa Angira Angira vs ICDC (2015) eKLR, it exercised its equitable discretion, noting that the injunction sought was discretionary and depends on the circumstances of the case, and substituted a status quo order which restrained the respondents from alienating, transferring, repossessing, reallocating or otherwise interfering with the property.
Whether an injunction can issue against the Government (1st defendant)
The respondents argued that an injunction cannot issue against the Government, but the court did not expressly determine this as a bar; it instead granted a status quo order binding on the defendants including the Government.
The respondents' counsel urged the court not to injunct the Government, being the 1st defendant, and asserted the applicant sued a wrong party given that allocation and reallocation of public land vests in the National Land Commission. The court framed the single question around the Giella threshold and, rather than refusing relief on this ground, granted a status quo order directed at the defendants/respondents generally, without expressly resolving the objection.
Legal principles established
#- For an interim injunction to issue, the applicant must establish a prima facie case, demonstrate irreparable injury if the injunction is not granted, and if in doubt show that the balance of convenience tilts in his favour
- An interim injunction is an equitable remedy within the court's discretion, and the court may grant it subject to terms; where the interests of justice demand, a maintenance of status quo order may be substituted for an injunction
- The Environment and Land Court has the mandate to grant interim preservation orders including interim injunctions under section 13(7)(a) of the Environment and Land Court Act
Court orders
#- 1.The parties shall maintain the prevailing status quo in lieu of a temporary injunction in respect of suit property plot number 8534/93 measuring 0.0351 hectares in Migori Town pending the hearing and determination of the suit
- 2.The defendants/respondents shall not alienate, transfer, repossess, reallocate or in any manner dispose of or interfere with the suit property pending the hearing and determination of the suit
- 3.Costs of the application be in the cause
- Jurisdiction invoked
- Section 13(7)(a) of the Environment and Land Court Act, 2015; sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act (Cap 21) and Orders 4, 40 and 51 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Roch Oburu Odhiambo v Migori County Government & another [2019] KEELC 1848 (KLR)", Case Analysis (2019). Notice of motion dated 27th November 2015 (filed 30th November 2015), within a suit at the Environment and Land Court, Migori. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1848/eng@2019-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.