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ELCPartially AllowedNot stated in the excerpt provided· [2019] KEELC 3364 (KLR)

Edward Shavanji Angwe v Malaki Akhamwa Makomere & 2 others [2019] KEELC 3364 (KLR)

Environment and Land Court
8 May 2019
NMN. A. MATHEKA
652 words in judgment
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The bottom line

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A Kakamega court paused all eviction and land dealings in a Marama/Shirotsa dispute, preserving the status quo until the ownership case is fully heard.

What this practically means

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Executive summary

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By a notice of application dated 15th March 2019, the plaintiff/applicant in an originating summons seeking title to land parcels MARAMA/SHIROTSA/2219 and MARAMA/SHIROTSA/2220 (subdivisions of the original title MARAMA/SHIROTSA/268) applied for the enjoining of Gladys Chitai and Everline Bwoya as 2nd and 3rd respondents, temporary injunctions restraining the respondents from evicting him or dealing with the suit parcels, that the suit proceed with all three respondents as defendants, and costs. The applicant submitted that the 1st respondent had sold, subdivided and effected transfer of the original parcel to third parties, and that the 2nd and 3rd respondents were in the process of evicting him and his family. The 1st respondent maintained the land was hers and she had sold it; the 2nd respondent stated she was a buyer. Applying the principles in Giella v Cassman Brown and the definition of a prima facie case in Mrao Ltd v First American Bank of Kenya Ltd, N.A. Matheka J found the applicant had established a prima facie case and that the orders sought were in the interest of justice. The court granted prayer 1 (enjoining of the 2nd and 3rd respondents), ordered that status quo be maintained pending the hearing and determination of the suit, and directed that costs of the application be in the cause. The formal temporary injunctions in prayers 2 and 3 were not granted in terms; preservation was achieved through the status quo order.

Key legal issues

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01

Whether the applicant established a prima facie case warranting enjoining of the 2nd and 3rd respondents and preservation of the suit land

Holding

The applicant established a prima facie case; the court enjoined the 2nd and 3rd respondents and ordered status quo pending hearing

Reasoning

The applicant claimed title to parcels subdivided from the original title MARAMA/SHIROTSA/268, and alleged the 1st respondent sold, subdivided and transferred it to third parties who were evicting him. The court applied the Giella v Cassman Brown principles and Mrao's definition of a prima facie case, found the enjoining necessary for the suit to proceed, and held the orders sought were in the interest of justice.

p. 2

Legal principles established

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  • The established test for granting an interlocutory injunction: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt

Court orders

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  1. 1.Prayer 1 of the application granted - the 2nd and 3rd respondents enjoined in the suit
  2. 2.Status quo to be maintained pending the hearing and determination of the suit
  3. 3.Costs of the application to be in the cause

Authorities

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Cases cited (2)

  • Giella vs. Cassman Brown
    (1973) EA 358
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 others
    (2003)
Jurisdiction invoked
Not expressly stated; interlocutory application in pending suit (originating summons for title to land)

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, "Edward Shavanji Angwe v Malaki Akhamwa Makomere & 2 others [2019] KEELC 3364 (KLR)", Case Analysis (2019). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3364/eng@2019-05-08

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