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ELCPartially AllowedInterlocutory application in ELC Originating Summons (Eldoret); consolidation sought of Eldoret CM ELC No. 33 of 2019· [2019] KEELC 3435 (KLR)

Kipkoech v Bargoria & another (Environment and Land Case 38 of 2019) [2019] KEELC 3435 (KLR)

Environment and Land Court
14 May 2019
1,552 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer in occupation won temporary protection from eviction, with the court confirming that possession alone can establish a prima facie case.

What this practically means

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Executive summary

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The applicant, Bryan Chebii Kipkoech, moved the Environment and Land Court at Eldoret in an adverse possession claim against Barnabas Tuitoek Bargoria and David Kimutai Bargoria, the registered owners of Uasin Gishu/Kipkabus Settlement Scheme/463 and 464. He sought a temporary injunction restraining his eviction, an inhibition against the Land Registrar, and transfer and consolidation of Eldoret Chief Magistrate ELC No. 33 of 2019, in which the respondents sought his eviction. He claimed open, uninterrupted occupation since 2003 and 2000 respectively, contending the respondents' titles had been extinguished by adverse possession, and that the respondents now threatened forcible eviction. The respondents, through the 1st respondent's replying affidavit, asserted they had granted licences of occupation and that the applicant took possession without consent. Applying the Giella v Cassman Brown principles, A. Ombwayo J found the applicant in possession, holding that possession alone established a prima facie case, with the question of consent or licence to be determined at trial since there was no written evidence of a licence. On irreparable loss, the applicant had invested in the property per valuation reports and faced eviction and destruction of property. The balance of convenience favoured the applicant, who was in possession, while the respondents had not utilised the lands for over 12 years. The court granted a temporary injunction restraining the respondents from evicting the applicant or dealing with the suit parcels. The inhibition and consolidation prayers were not expressly ruled upon, and no costs order was made.

Key legal issues

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01

Prima facie case for temporary injunction

Holding

The applicant, being in possession of the suit lands with the question of consent/licence left for trial, established a prima facie case with probability of success

Reasoning

Applying Giella v Cassman Brown, the court found the applicant in possession. Possession alone established a prima facie case; the only remaining issue - whether the applicant occupied with the 1st respondent's consent or under a licence - should go to trial, there being no written evidence of a licence. A prima facie case does not mean a case proved to the hilt but one established if the evidence led is believed.

p. 3
02

Irreparable loss

Holding

The applicant had invested in the property per valuation reports and faced eviction and destruction of property if no injunction issued

Reasoning

The court held that irreparable injury is injury that cannot be adequately compensated in damages and that a prima facie case alone is insufficient. On the facts, valuation reports showed investment in the land, and without an injunction the applicant would likely be evicted and the property destroyed, a loss not compensable in damages.

p. 3
03

Balance of convenience

Holding

The balance of convenience favoured the grant of injunction because the applicant was in possession and the respondents had never utilised the lands for over 12 years

Reasoning

The court explained that balance of convenience is really a balance of inconvenience, which the applicant must show weighs greater against him if the injunction is withheld. As the applicant was in occupation and the defendants had not used the land for more than 12 years, the inconvenience of refusal to the applicant exceeded any inconvenience to the respondents from the grant.

p. 3

Legal principles established

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  • Being in possession of land establishes a prima facie case for purposes of an interlocutory injunction

Court orders

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  1. 1.Temporary injunction restraining the respondents, their agents or employees from evicting the applicant from or dealing with Uasin Gishu/Kipkabus Settlement Scheme/463 and 464 pending hearing and determination of the main suit

Authorities

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Cases cited (2)

  • Giella v Cassman Brown Co. Ltd
    [1973] EA 358
  • American Cyanamid v Ethicon Limited
    [1975] AC 396
Jurisdiction invoked
Inherent and original jurisdiction of the Environment and Land Court over land disputes (Uasin Gishu/Kipkabus Settlement Scheme parcels)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kipkoech v Bargoria & another (Environment and Land Case 38 of 2019) [2019] KEELC 3435 (KLR)", Case Analysis (2019). Interlocutory application in ELC Originating Summons (Eldoret); consolidation sought of Eldoret CM ELC No. 33 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3435/eng@2019-05-14

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