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ELCDismissedNot stated in the extract· [2019] KEELC 2560 (KLR)

Chavugami Pag (Suing through Javan Omega) v Joseph Agesa & another [2019] KEELC 2560 (KLR)

High Court of Kenya
4 July 2019
NMN.A. Matheka
1,201 words in judgment
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The bottom line

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The High Court in Kakamega refused to stop construction on disputed land because the applicant failed to show a strong case, real harm, or why stopping work was fairer.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 11th February 2019 brought by the appellant, Rev. Javan Omega, under Order 42 Rule 6(6) of the Civil Procedure Rules and Sections 1A and 1B of the Civil Procedure Act, seeking a temporary injunction to restrain the respondents, their agents and family members, from continuing construction on land parcel No. South/Maragoli/Lugovo/1718 pending the hearing and determination of an appeal against the dismissal of his injunction application dated 22nd November 2018 in Vihiga PM's ELC Case No. 26 of 2018. The appellant asserted he was the absolute registered proprietor and that the respondents had forcefully taken possession, fenced the parcel and commenced permanent construction, while filing a defence and counterclaim for adverse possession. The respondents opposed, arguing the application mirrored the memorandum of appeal, was an abuse of process, and that ownership of the parcel had been determined in Vihiga Misc. Application No. 8 of 2001 with a decree upheld in High Court Civil Appeal No. 3 of 2015. Applying the Giella v Cassman Brown test as clarified in Mrao Ltd v First American Bank, N.A. Matheka J found no prima facie case with probability of success, no irreparable injury not compensable in damages, and that possession by the respondents tilted the balance of convenience in their favour. The application was dismissed with costs on 4th July 2019 at Kakamega.

Key legal issues

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01

Whether temporary injunction should issue pending appeal

Holding

Application dismissed - applicant failed all three Giella conditions

Reasoning

The court applied the Giella v Cassman Brown test as elaborated in Mrao Ltd v First American Bank. It found the applicant failed to demonstrate a prima facie case with probability of success, failed to show irreparable injury not compensable by damages, and noted the respondents were in possession so the balance of convenience favoured them. The application was dismissed with costs.

p. 2
02

Possession and balance of convenience

Holding

The respondents are in possession, tilting the balance of convenience in their favour

Reasoning

The record showed the respondents had fenced the parcel and commenced construction of permanent buildings and were in possession. The court took this factual position into account in concluding the balance of convenience lay with the respondents rather than the appellant claiming registered ownership.

p. 2

Legal principles established

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  • The conditions for granting an interlocutory injunction are a prima facie case with probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience
  • A prima facie case is more than an arguable case; the evidence must show an infringement of a right and probability of success at trial

Court orders

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  1. 1.The application dated 11th February 2019 was dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(6)
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B

Cases cited (2)

  • Giella vs. Cassman Brown
    (1973) EA 358
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 others
    (2003)
On appeal from
Vihiga Principal Magistrate's Court (Environment and Land Court)
ELC Case No. 26 of 2018
Jurisdiction invoked
Order 42 Rule 6(6) of the Civil Procedure Rules; Sections 1A and 1B of the Civil Procedure Act

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, "Chavugami Pag (Suing through Javan Omega) v Joseph Agesa & another [2019] KEELC 2560 (KLR)", Case Analysis (2019). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2560/eng@2019-07-04

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