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ELCPartially AllowedNotice of motion dated 27th November 2015 (filed 30th November 2015), within a suit at the Environment and Land Court, Migori· [2019] KEELC 1848 (KLR)

Roch Oburu Odhiambo v Migori County Government & another [2019] KEELC 1848 (KLR)

Environment and Land Court of Kenya
3 July 2019
1,168 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 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

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Executive summary

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This ruling by the Environment and Land Court at Migori (G.M.A. Ongondo, J) determined a Notice of motion dated 27th November 2015 by the plaintiff, Roch Oburu Odhiambo, seeking a temporary injunction against the 1st and 2nd defendants restraining them from repossessing, reallocating, alienating or disposing of suit property LR No. 8534/93 in Migori Town, a 0.0351-hectare parcel the applicant claimed to hold under a 99-year lease running from 1st September 1985. The application, brought under sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 4 of the Civil Procedure Rules, 2010, was opposed through a replying affidavit sworn by Thomas Kwanga Mboya, the then County Attorney of the 2nd respondent, on grounds that the legal threshold was unmet, the applicant had not complied with special condition 2 of the allotment, the suit had no chances of success for want of cause of action, and an injunction cannot issue against the Government. Both sides filed written submissions and cited Giella vs Cassman Brown. The court applied the Giella criteria as reinforced in Mrao and Nguruman, found that the applicant had demonstrated a prima facie case as lawful allottee through his documents, but held that the appropriate and merited order was maintenance of the prevailing status quo rather than the injunction sought. The court directed both parties to maintain the status quo, restrained the respondents from alienating, transferring, repossessing, reallocating or otherwise interfering with the property pending the hearing and determination of the suit, and ordered that costs of the application be in the cause. Delivered, dated and signed at Migori on 3rd July 2019.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 2
02

What interim relief was appropriate - a temporary injunction or maintenance of status quo

Holding

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.

Reasoning

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.

p. 2
03

Whether an injunction can issue against the Government (1st defendant)

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 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. 3.Costs of the application be in the cause

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)sections 1A, 1B, 3, 3A, 63(e)
  • Civil Procedure Rules, 2010Order 4; Order 40 rule 2; Order 51 rule 16
  • Land Act, 2016 (2012)sections 2, 14(1)(3), 18
  • Environment and Land Court Act, 2015 (2012)section 13(7)(a)

Cases cited (5)

  • Giella –vs- Cassman Brown Company Ltd
    (1973) EA 358
  • Mrao Ltd –vs- First American Bank of Kenya Ltd and 2 others
    (2003) KLR 125
  • Nguruman Ltd –vs- Jan Bonde Nielson and 2 others
    (2014) eKLR
  • DPP –vs- Justus Mwendwa Kathenge and others
    (2016) eKLR
  • Musa Angira Angira –vs- ICDC
    (2015) eKLR
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

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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, "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.