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ELCOtherNot stated in the judgment· [2019] KEELC 2068 (KLR)

Orenge Wilfred Stephen v Patrick Muchoki Waithuki & 4 others [2019] KEELC 2068 (KLR)

Environment and Land Court
29 July 2019
1,471 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court froze the disputed plot rather than picking a winner, showing murky land claims get preserved for trial, not instant injunctions.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru by D. O. Ohungo J disposes of three interlocutory applications: the plaintiff's Notice of Motion dated 12th April 2017 seeking an injunction and inhibition over plot No. 74 at Oljorai Phase II Settlement Scheme, Naivasha; the 5th defendant's Notice of Motion dated 13th March 2018 seeking a permanent injunction over Parcel Number 75; and the 2nd defendant's Notice of Motion dated 23rd April 2018 seeking a permanent injunction over Parcel Number 74. The plaintiff claimed she purchased plot 74 from the 2nd defendant under agreements of 18th February 2011 and 13th July 2013, paid the full purchase price of KShs 505,000, obtained a transfer and took possession, but that on 5th April 2017 the 1st and 2nd defendants with security officers destroyed her fence. The 2nd defendant denied selling the plot, alleging the agreements and transfer were forgeries, and claimed she was settled on the plot with her family. The 5th defendant was allocated plot 75 in 2010 and received a title in 2016 for a smaller area than allotted, alleging subdivision and invasion by the plaintiff. Applying Giella v Cassman Brown as reinforced by Nguruman, the court found accusations and counter-accusations with forgery allegations requiring a heightened standard of proof, leaving it in doubt which party had the better claim or whether damages would suffice. It therefore determined the applications on the balance of convenience and preservation of the suit property, invoking the Practice Directions on status quo. The court ordered an inhibition registered against Parcel Number 74 pending trial, with costs of the three motions in the cause. All injunction applications were effectively not granted as framed; determination of ownership awaits trial.

Key legal issues

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01

Whether the applicants satisfied the interlocutory injunction test in Giella v Cassman Brown

Holding

No: the court was in doubt as to which party had the better claim and whether damages would be adequate, so the applications fell to be determined on the balance of convenience

Reasoning

The plaintiff and 2nd defendant both claimed plot 74 on contradictory evidence, with allegations of forgery of the sale agreements and transfer requiring a heightened standard of proof. The 5th defendant also indirectly claimed part of plot 74. Given accusations and counter-accusations, the court could not find a prima facie case for any party and doubted that damages would adequately compensate any of them, leaving the balance of convenience as the operative stage.

p. 2
02

How the competing interests over the suit property should be dealt with pending trial

Holding

The suit property should be preserved pending trial by registration of an inhibition, in line with the Practice Directions on Proceedings in the Environment and Land Courts

Reasoning

The court invoked paragraph 32 of the Practice Directions encouraging maintenance of status quo pending hearing where parties cannot agree. Since each applicant claimed the whole or part of plot 74, the court concluded the property itself had to be preserved and ordered an inhibition registered against it rather than granting any party's injunction.

p. 3
03

Whether the applications sought permanent or interlocutory injunctions

Holding

Despite the phrase 'permanent injunction' used by some applicants, what was sought were interlocutory injunctions pending the hearing and determination of the suits

Reasoning

The court noted that although some applicants described their relief as a permanent injunction, the substance of each motion was interlocutory relief pending trial, and accordingly applied the interlocutory injunction test rather than the standard for final injunctions.

p. 2

Legal principles established

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  • The three Giella v Cassman Brown conditions are sequential hurdles; if a prima facie case is not established, irreparable injury and balance of convenience need no consideration
  • Allegations of forgery, though raised in civil proceedings, require a standard of proof higher than balance of probabilities and lower than beyond reasonable doubt
  • Where the court is in doubt on the competing claims, interlocutory applications should be determined on a balance of convenience with a view to preserving the suit property

Court orders

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  1. 1.Pending the hearing and determination of the suit, an inhibition be registered against Parcel Number 74 Oljorai Phase II Settlement Scheme
  2. 2.Costs of the three Notices of Motion (12th April 2017, 13th March 2018 and 23rd April 2018) shall be in the cause

Authorities

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Legislation

  • Practice Directions on Proceedings in the Environment and Land Courts, and on Proceedings Relating to the Environment and the Use and Occupation of, and Title to Land and Proceedings in Other Courts (Gazette Notice No. 5178)Paragraph 32

Cases cited (2)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over interlocutory applications relating to title to land, guided by the Practice Directions on Proceedings in the Environment and Land Courts

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, "Orenge Wilfred Stephen v Patrick Muchoki Waithuki & 4 others [2019] KEELC 2068 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2068/eng@2019-07-29

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